the barrister issue 51
DESCRIPTION
essential rading for barristersTRANSCRIPT
3
the barristerISSN 1468-926X
price £2.8011th January - 4th April 2012
Features
News
Publishing Director: Derek Payne
0845 5190 176
email: [email protected]
Publishers: media management corporation ltd
Design and Production: Alan Pritchard
email: [email protected]
Bar couNcil calls oN house oF lorDs to listeN to warNiNgs oN legal aiD cuts
solDiers aND law stuDeNts PrePare For iNterNatioNal crisis
#51
Legal Aid Bill and the Family Justice Review. Tension.
HiLArY TerM iSSUe
eSSeNTiAL reADiNG FOr BArriSTerS
www.barr istermagazine.com
Est. 1999
Young adults, maturity and sentencing
10
14
20
21
Bingham’s Legacy
an appreciation of the life and work of lord Bingham of cornhill Kg Pc
By Phillip taylor MBe, Barrister, richmond green chambers
Summary trial: too summary?
the drive for speedy summary justice means that magistrates’ courts are expected to be increasingly reluctant to grant adjournments.
By Peter hungerford-welch, assistant Dean (Professional Programmes) at the city law school, city university london
The Problem With Lawyers
the european union is currently engaged in considering how procedural safeguards for suspects in criminal proceedings can be enhanced. it is a long time coming.
By Jodie Blackstock, Barrister, Director of criminal and eu Justice Policy Justice
The Legal Aid Sentencing and Punishment of Offenders Bill (“the LASPO Bill”) is “a substantial and far-reaching” piece of proposed legislation. So it was described by Lord McNally when introducing the Second Reading in the House of Lords on 21st November 2011.
“Substantial” – it certainly is, running currently to some 137 clauses and 23 schedules. And “far-reaching”? – Undoubtedly, given that it contains brutal reform of the provision of legal aid in a range of civil and family cases, affecting (on the Government’s own estimates) approximately 500,000 people. Of most concern to those who work in the field of family justice, the LASPO Bill contains controversial provisions to remove from
the scope of legal aid the vast majority of cases concerning family breakdown. It is predicted that some 54,000 cases will be removed from the scope of family legal aid per year. It is assessed (per Justrights) that 68,000 children and young people will be affected by the legal aid proposals.
In outlining the Bill’s key provisions
The Court of Appeal’s decision in October 2011 to uphold the majority of sentences for the rioters reflected the fact that the context of public disorder was considered a hugely aggravating factor. Lord Judge defended the decision stating that the level of lawlessness required severe sentences “to provide both punishment and deterrence”. He went on to differentiate between the approach taken towards these young adults (the majority were aged between 18 and 25) and the approach adopted for juveniles, “none of these appeals involves children or young offenders (where different sentencing considerations arise).....the actions were deliberate, and each knew exactly what he (and in one case, she) was doing.” However, before sentencers heed the green light to impose harsher penalties on those
still queuing up at the Crown Court, it is worth noting the new Sentencing Council guideline on burglary offences, published only a week earlier than the riot appeal judgements, included the mitigating factor of ‘age and/or lack of maturity’ where it affects the responsibility of the offender. This means that, just as context of wider criminality should be considered, so too should the individual offenders’ age and maturity. This has clear relevance for the young adults caught up in the summer of public disorder.
A substantial body of research evidence shows that young people are not fully mature until their mid-20s. This is particularly evident in the areas of judgment, self control, resisting
Stephen Cobb QCChairman of the FLBA
p.8
p.6
Turcan Connell offers a comprehensive service to private individuals and their families. Our focus has always been on providing trusted counsel over the long term. Our combination of legal, tax, financial planning and investment expertise allows us to provide focused and tailored advice on the issues that really matter.
Turcan Connell is authorised and regulated by the Financial Services Authority for investment business.
Guiding our clients every step of the way
Edinburgh London Guernsey
Princes Exchange, 1 Earl Grey Street
Edinburgh EH3 9EE
Tel: 0131 228 8111
www.turcanconnell.com
• Asset Protection
• Dispute Resolution
• Employment Law
• Financial Planning
• International Trust Services
• Investment Management
• Pensions
• Tax Services
• Trust and Succession
• Turcan Connell Family Office
TC The Barrister Advert Nov 11.indd 1 14/11/2011 18:14
03the barrister
Bingham’s LegacyAn appreciation of the life and work of Lord Bingham of Cornhill KG PC
By Phillip Taylor MBE, Richmond Green Chambers
Lord Bingham was the first judge to be appointed a Knight of the Garter in 2005 and it was a fitting tribute to one of our finest modern
judges. This article reviews the life and work of Thomas Bingham who has rightly been considered a towering figure in the Law (according to “The Guardian” newspaper) and the greatest judge of the age: a description which this appreciation, written on the first anniversary of his death on 11th September 2010, will aim to justify from his work and writings.
He was the first person in history to be the Master of the Rolls (in charge of civil process), and then the Lord Chief Justice (in charge of the criminal process), and as a Senior Law Lord (in charge of the final appellate court) recording some enduring judgments throughout this period in legal history. One notable success was his dexterity in steering the highest court towards its transition from the Appellate Committee of the House of Lords to our new Supreme Court.
Thomas Henry Bingham was born on 13th October 1933 and raised in Reigate, Surrey. Both his parents practised as doctors. He was educated at Sedbergh (where he was considered the cleverest boy for a century!), Then he went on to take a First in Modern History at Balliol College, Oxford, being awarded the Eldon Scholarship. He topped the Bar exams (winning a Certificate of Honour in the Bar Finals), and winning the Arden Scholarship. He was called to the Bar of Gray’s Inn in 1959, becoming one of its Benchers in 1979.
Bingham joined the chambers of Leslie (later Lord) Scarman, and established a name in both common
law and commercial work. He was appointed Standing Junior Counsel to the Department of the Environment between 1968 and 1972. He took silk in 1972 and sat as a Recorder of the High Court between 1975 and 1980. Lord Denning considered Bingham, with Patrick (now Lord) Neill as one of the foremost advocates of his time. In 1980, Bingham was appointed to the High Court, in the Queen’s Bench Division and as a judge of the Commercial Court, serving there until 1986.
During 1977 and 1978, Bingham led
an investigation into the supply of oil to
Rhodesia, and between 1991 and 1992
he investigated the supervision of BCCI
by the Bank of England, castigating
the Bank of England for failing to
intervene earlier. Viewed from the
judicial standpoint, he exhibited his
independence and he supported Sir
John Major’s reformist Lord Chancellor,
Lord Mackay, with the relatively
modest attempts to modernise the legal
profession at that time.
Bingham was a Lord Justice of Appeal from 1982 to 1992, and he then became Master of the Rolls from 1992 to 1996 during which time he supported the incorporation of the European Convention of Human Rights into English Law. Then, he was appointed Lord Chief Justice in 1996, to the surprise of some, even though he had little experience of criminal law and it was a post he held until 2000. During those years he called cannabis law stupid, sought safe houses for paedophiles and the abolition of mandatory life sentences for those convicted of murder. During this time, he heard civil cases as well as criminal appeals and even occasionally sat in the Crown Court. And to my mind he was always his own man throughout!
The Supreme Court
Between 2000 and 2008, Bingham was Senior Lord of Appeal in Ordinary, and was the highest-ranking and presiding member of the judicial committee of the House of Lords, after the position of Lord Chancellor. The enactment of the Human Rights Act in 1998 established some 100 cases during his term. It has been rightly said that he left an enduring mark in human rights law with what has been described as “classic judgments of pellucid prose that revealed an unrivalled breadth of learning (again from ‘The Guardian’).” Bingham will be remembered for steering the law lords towards a Supreme Court although there were quite a few waverers! And as the chief catalyst, who, once the Labour Government’s intention was clear, he advanced the cause more than any other individual in the belief that the judiciary should be visibly separate from the legislature, and the Supreme Court took shape from the Middlesex Guildhall. Another precedent was set.
Bingham’s Works
Bingham wrote a number of fascinating books which started life as lectures, including ‘The Business of Judging’ (2000) and ‘Lives of the Law’ (2011- not a good title). However, his most memorable work for us will be ‘The Rule of Law’ which it has been suggested by many commentators will define the rule of law for a century! Some years before the book itself emerged, in November 2006, Bingham delivered an academic paper which became his book ‘The Rule of Law’, although the original lecture was largely ignored by the press at the time. Before Bingham’s views were aired, "the rule of law" meant generally what Professor A V Dicey (and jurisprudence
Turcan Connell offers a comprehensive service to private individuals and their families. Our focus has always been on providing trusted counsel over the long term. Our combination of legal, tax, financial planning and investment expertise allows us to provide focused and tailored advice on the issues that really matter.
Turcan Connell is authorised and regulated by the Financial Services Authority for investment business.
Guiding our clients every step of the way
Edinburgh London Guernsey
Princes Exchange, 1 Earl Grey Street
Edinburgh EH3 9EE
Tel: 0131 228 8111
www.turcanconnell.com
• Asset Protection
• Dispute Resolution
• Employment Law
• Financial Planning
• International Trust Services
• Investment Management
• Pensions
• Tax Services
• Trust and Succession
• Turcan Connell Family Office
TC The Barrister Advert Nov 11.indd 1 14/11/2011 18:14
04 the barrister
The barrister magazine cannot accept responsibility
for information supplied by other parties, views
expressed may not necessarily be that of
the editor or publishers.
students) had decided the phrase conveyed about law in four words. Bingham's definition of this much-used term is both the authoritative and orthodox view and will probably remain so for the foreseeable future.
‘The Rule of Law’ is now defined as follows:
"that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts."
Great! It’s always useful to have a new definition for a new decade, and Bingham does not disappoint! He builds upon his definition with eight principles which are worth identifying for those unfamiliar with his concepts:
1. "The law must be accessible and so far as possible intelligible, clear and predictable". As he explains, this is a restraint on judicial activism. "It is one thing to move the law a little further along a line on which it is already moving, or to adapt it to accord with modern views and practices; it is quite another to seek to recast the law in a radically innovative or adventurous way."
2. "Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion". This does not mean that judges are automatons lacking the ability to take decisions in individual cases. But any discretion granted by law must not be exercised merely in an arbitrary fashion.
3. "The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation". Equality before the law is rightly seen as a cornerstone of the constitution, though it did not deter the last Labour government from passing legislation in 2001 under which the only terrorist suspects who could be detained
indefinitely were foreigners.
4. Bingham's 4th principle has been moved from the 6th place it held in his lecture. It’s that "ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably". And so this is a fundamental and long-standing principle of public law, and the basis of judicial review.
5. "The law must afford adequate protection of fundamental human rights". In what may be seen as an attack from the grave on critics of the European convention within the current government, he demands to know which of the convention rights they would discard. "Would you rather live in a country in which these rights were not protected by law?" he asks sharply.
6. The state must provide a way of "resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve". As Bingham recognises, this is more of an aspiration than an assessment of the current position.
7. "Adjudicative procedures provided by the state should be fair". Bingham’s use of somewhat ponderous language is designed to cover not only criminal trials but also civil hearings and administrative decisions.
8. "The rule of law requires compliance by the state with its obligations in international law as in national law". There are those who would argue the opposite. But stating this principle gives Bingham the opportunity to restate his view that Britain's invasion of Iraq in 2003 was unlawful (he was critical of Blair and the then Attorney General), a view he was careful not to express in the lecture he delivered while still a judge!Bingham’s legacy will not just be about these 8 well-structured principles, it
will be much more contained in his judgments and selected essays which Oxford University Press have now published. As we celebrate the 800th anniversary of Magna Carta in three years’ time, so from its beginnings until Bingham’s statements of today, ‘the rule of law’ remains the bedrock of how we do things, and it’s not to be blithely summed up (as Mr Gearty unfortunately did in ‘The Observer’) as reading “like the transcript of a parlour game played by a particularly precocious set of undergraduates". Bingham’s legacy is much more than that as we have seen, and he remains greatly missed.
The search that delivers results.
Not only does JustCite show you how cases, legislation and articles cite and relate to each other, it harnesses the power of this
citation network to help you find leading authorities in seconds. Advanced search algorithms, integrated citation analysis, visualisation
tools and editorial content come together to make JustCite one of the most sophisticated legal research products ever developed.
Visit www.justcite.com/barrister2011 for a free trial, and see for yourself how JustCite can change the way you search the law.
The search that delivers results.
Not only does JustCite show you how cases, legislation and articles cite and relate to each other, it harnesses the power of this
citation network to help you find leading authorities in seconds. Advanced search algorithms, integrated citation analysis, visualisation
tools and editorial content come together to make JustCite one of the most sophisticated legal research products ever developed.
Visit www.justcite.com/barrister2011 for a free trial, and see for yourself how JustCite can change the way you search the law.
06 the barrister
on family legal aid to the Upper House, the Minister sought to re-assure its members that “the vast majority of support
for children will be unaffected by our changes”, and further that “in relation to women’s access to legal aid, we are again prioritising those most at risk of harm, retaining legal aid for private law cases involving domestic violence”. However, when probing the detail lying beneath these headlines (as, it was re-assuring to see, many of the Peers who addressed the House did), these re-assurances offered by the Minister look rather less convincing.
Tension The LASPO Bill follows a consultation process, which was launched a year ago. Even by that time, the Family Justice Review (“FJR”) - an independent panel set up as an inter-departmental initiative with cross-party support – had been, for some months, examining the family justice system in England and Wales. Unsurprisingly, many working in the family justice system (including the FLBA and the Bar Council) proposed that reform of legal aid in family cases should await the outcome of the FJR report. This plea was ignored. Just as the LASPO Bill passed through the House of Commons largely unamended (certainly in relation to legal aid provision for family cases) the final Report of the Family Justice Review (“FJR”) was published. While the Government has sought to portray that the FJR “complements” the legal aid reforms, the reality is that in many respects, these two reforming initiatives are in considerable tension with one another.
While recognising that the Government has to make tough economic decisions, perhaps the greatest for a generation, it cannot be right to do so by removing legal aid provision from the most vulnerable in our society. Please don’t accuse me of ‘Nimby-ism’. These proposals attracted virtually no support when they were consulted upon. Less than 3% of the 5,000 respondents to the Government’s consultation supported these plans. And the Government rationalizes that overwhelming reaction by declaring itself satisfied that: “Although a significant majority of responses disagreed with the proposals, the Government remains convinced that reform is necessary to avoid unnecessary litigation, reduce the cost of legal aid and deliver better overall value for money.” (Annex B, para.3: The Government Response: CM8072).
Child protectionThe Government’s apparent perception that litigation in family breakdown cases
is “unnecessary” shows a disheartening lack of understanding of the work of the family court, and the role it plays in protecting the vulnerable. Little, if any, recognition is given in the Government’s lengthy documentation generated in its legal aid reform initiative to the fact that large numbers of cases of family breakdown (‘private law cases’) involve child protection issues. The FJR did recognise this, reporting that: “Serious child protection concerns are raised, or come to light, in a significant proportion of private law cases. Where there are concerns for the child’s safety or for a vulnerable adult swift and decisive action must be taken to protect them” (emphasis added). Many of these cases will now come before the court with the parties unrepresented.
Child protection cases cannot (or should not) be mediated. They need robust safeguarding measures. Yet the future legal aid regime will see many litigants self-representing in these difficult cases. And as if the subject of the dispute was not difficult enough, it has to be recognized that in the field of family law litigation perhaps higher than average numbers of parties have significant vulnerabilities. Mental illness, for instance, is well-known to be closely associated with relationship breakdown. The NSPCC’s recently published report ‘All Babies Count’ [November 2011] underlines this point; it revealed that just under 20,000 babies (under a year old) are living with a parent who has taken class A drugs in the last year, nearly 100,000 babies (under a year old) live with a parent who is a problem drinker, nearly 150,000 babies (under a year old) live with a parent with a common mental health problem. What happens when family breakdown occurs in the households of these babies? Will the cases be suitable for mediation? These cases need independent scrutiny and effective safeguarding measures; the courts will need help. But absent legal aid, there will not only be no lawyers on hand to assist the court, there will be no facility for procuring drink/drug testing analysis, mental health reports, or even DNA testing.
“Scandalous delays”
In addressing its objectives, the FJR has focused on family justice ‘systems’, as well as substantive law, in the area of family breakdown. One of its key objectives was to address the fact that “delays in determining the outcome of court applications should be kept to a minimum”; delay was, understandably, seen as a ‘weakness’.
The FJR panel was outspoken in its interim report (March 2011) when
describing the ‘shocking’ delays in the family justice system; they were “little short of scandalous”. The delays affect all types of family dispute. The fact that a child in care is now expected to wait 61 weeks for a decision as to his/her future is attributable in significant respects in some areas of the country, to a range of reasons including the pressure on the court lists and the relative unavailability of court rooms and judge time.
In its interim report (March 2011 §2.47) the FJR panel observed that “Proposed changes to legal aid, should they go ahead, will mean more people choosing to represent themselves as litigants in person. This complexity will, as a result, become an increasingly important weakness” in the delivery of outcomes for families (my emphasis).
The success of the Government’s legal aid reform proposals depend very significantly on its assessment that large numbers of cases of family breakdown will be siphoned away from the court system and into mediation. Even on the Government’s own figures, the number of mediations is not likely to be great. And many mediators have expressed their clear view that mediation is only truly effective in matrimonial and family breakdown cases if conducted under the shadow of the law, and supported by robust independent legal advice. So if mediation fails to capture and resolve large numbers of problems associated with family breakdown, these couples are going either to resort to self-help out of the court (with untold social and economic cost) or self-help in the court. It is easy to predict that the influx of self-representing litigants in the family courts is going to cause havoc to the proper and speedy administration of family justice.
The Government knows this. They were so advised by very many professional bodies who responded to the legal aid consultation, including, notably, the judiciary. And if these submissions were discarded as generated by a form of self-interest, surely the Ministry of Justice’s own literature review (conducted by Kim Williams) could not so easily be put on one side. The MoJ paper (published in June 2011) revealed, in summary, that cases involving ‘active’ litigants in person (i.e. litigants who play a part in proceedings as opposed to those who do not) lead to lower prospects of settlement, poorer case outcomes, and longer delays.
The House of Commons Justice Committee reinforced this point. In their report, on the “Operation of the Family Courts”, they recognized that the family courts will see an increase in litigants in
p.1
07the barrister
person following reforms to the legal aid system, adding – notably and explicitly that “We are not convinced the Ministry of Justice has fully appreciated the impact on court resources of many more unrepresented parties”.As part of the wider legal aid ‘reform’ programme, and in parallel with the LASPO Bill, the Community Legal Services (Funding)(Amendment No.2) Order 2011 has been passed. Notwithstanding an attempt by the opposition shadow Minister Lord Bach to have the Order annulled at the end of October, the Order stands. It has the effect of introducing 10% cuts to the fixed Family Advocacy Scheme rates for solicitors and the Bar with effect from 1st February 2012. These cuts are made to fees which have not been increased in real terms for over 10 years. Doubtless, the Government feels that it can justify this on the basis – as referred to above – that private law cases are essentially “unnecessary”; but the lawyers practicing in the field of family law are in the view of the FJR not a disposable group but a valuable commodity. The FJR explicitly acknowledged that “lawyers play an important role in ensuring the speedy resolution of cases, in supporting
families to negotiate settlements and narrowing issues where matters are contested” - characteristics of our work which receive no acknowledgement, let alone recognition in any of the lengthy Government documents generated in its discussion of legal aid. The FJR further acknowledges that “the supply of properly qualified family lawyers is vital to the protection of children”. That ‘vital’ service will ebb away. I fear that women and BME practitioners, who rely more heavily on public funds in family law than their male/white counterparts, will suffer first and hardest. It is easy to imagine what this will do to the supply of legal services; advice deserts will emerge – particularly in the regions. The drain of talent will be irreversible. The upshot? Access to justice will be harder for those who need it most.
It was something of an understatement for the Justice Committee to forecast (in its 28th June 2011 report on the Operation of the Family Courts) that “Undertaking changes to legal aid and implementing the recommendations of the Family Justice Review at the same time will be difficult.” It went on “The Department must look carefully at the interactions between the two sets of
proposals, and the cumulative impact on the different elements of the family justice system. The Department must monitor the situation carefully and intervene quickly if problems emerge…” We have to hope that the House of Lords anticipates these problems, and amends the Bill in meaningful ways, to avoid the worst of the problems rather than waiting for them to happen.
When Lord McNally rose to close the debate on the LASPO Bill in Second Reading late in the evening of 21st November he said that he expected the Upper House to “use Committee for a useful and productive examination of the Bill”; he added that “we have something like three months of parliamentary time looking at this Bill in its various stages. I cannot go further on these issues than saying that we will listen, but we will listen to some very serious points that were made in a very serious way.” In the interests of family justice, let us hope so.
Stephen Cobb QC - Head of ChambersChairman of the Family Law Bar Association1, Garden Court TempleLondon EC4 Y 9BJ
Join STEP, the professional body for the trust and estate profession worldwide, with over 16,500 professional members
www.step.org/barrister
Any practising barrister or anyone with rights of audience in relation to proceedings in the High Court can join the Society of Trust and Estate Practitioners (STEP) through our Advocacy Membership Route.
Why join STEP?■ Use the designation TEP to showcase your specialist expertise
in the field of trusts and estates■ Increase your profile in the trusts and estates industry ■ Network with industry peers, including fellow barristers,
solicitors and accountants■ Become more involved within the industry, with opportunities
to speak at conferences, join special interest groups and sit on industry related committees
■ Demonstrate a dedication and commitment to the field■ Access to industry surveys and research
For a full list of member benefits email [email protected]
How to join STEPApply by submitting three opinions demonstrating your trust and estate experience. Download an application form at www.step.org/barrister
Visit www.step.org/barrister to find out more and download an application form. For more information about STEP call +44 (0)20 7340 0500 or email [email protected]
Notice to all Barristers working within the trust, estates and private client industry
08 the barrister
peer pressure and ability to understand consequences of actions. A review of maturity by the University of Birmingham,
on behalf of the Transition to Adulthood Alliance, concluded that “development on those areas of the brain concerned with higher cognitive processes and executive functions, including control of impulses and regulation and interpretation of emotions, continues into early adulthood; the human brain is not mature until the early to mid 20s.”1 The researchers go on to explain that maturity is also contextual “how an individual demonstrates maturity, for instance in decisions about whether to engage in particular courses of action, is heavily dependent on the social, economic and cultural context in which the decision is made, and in particular on the ‘moral rules’ that operate in the particular context.” Is it any wonder that many of those convicted for involvement in the riots are young adults?
The evidence also throws into question pervasive assumptions around supposed ‘deterrent’ sentencing. The weight accorded to sentencers’ ability to deter other would-be criminals is naive at best, and at worst it is a gross misreading of the evidence. As the last major government-sponsored review of sentencing, the Halliday Report2
, concluded, there is no empirical evidence for the effectiveness of deterrent sentencing. For young people with developing maturity a potential prison sentence can appear a world away from the immediate pressures of the moment. Interesting the Halliday report recommended the mothballed ‘custody plus’ sentence which would have given offenders supervision and support after release from a short prison sentence. This would have been a smarter approach, focusing resources on cutting high reoffending produced by short prison sentences, and ensuring punishment is accompanied by practical support to move young adults away from crime into responsible adult lives. The previous government never found the cash to invest in the much-needed
programme and the current government are removing it from the statute book.More recent sentencing decisions have also attracted criticism including the case of Danielle Corns who, 18 at the time, stole two left-footed trainers during the August riots in Wolverhampton. She subsequently dumped them in the street yet received a 10 month prison sentence. Although no-one would argue that someone’s maturity is an excuse for illegal behaviour, it is certainly a factor and thus should be accorded due weight in mitigation. Lord Judge himself acknowledges that had those involved been under 18 they would have been treated entirely differently, as distinct sentencing principles apply to children and young people for very good reasons.
The majority of young adult rioters now facing serious time behind bars are the contemporaries of those heading off to university or into their first proper job. This raises wider political questions on whether custody should be reserved for those who committed violent acts or caused serious damage. Many of the young people jailed do not pose a threat to the public; alongside appropriate punishment they should be made to make amends, contribute, and repair the harm caused. The Criminal Justice Alliance has argued for much greater use of restorative justice in response to the riots 3. Not only is this hugely popular with victims and communities, it can often get young people to understand the consequences of their actions and take responsibility for the first time. Restorative justice can be particularly effective with young people; in Northern Ireland the reoffending rate for restorative justice was around 38% this compared to 52% for community sentences and 71% for custodial sentences 4. Approaches which cause young people to face up to the harm they’ve caused work with the grain of developing maturity, rather than against it.
At a recently held Criminal Justice Alliance event in parliament interested parties gathered to explore the issue
of including maturity in the sentencing framework. Experts from the Sentencing Council, the Magistrates’ Associate, the Ministry of Justice and parliament engaged in the debate. John Thornhill, Chair of the Magistrates’ Association, welcomed the inclusion of maturity as a mitigating factor in sentencing guidelines and espoused the need to take all relevant evidence into account. Panellists also highlighted a poll in which 69% of the public think a person’s emotional and psychological maturity should be taken into account when they are accused of breaking the law. This was rated more important than age, which only 57% of the public thought should be taken into account. Public opinion is clearly not a barrier to reform.
As a member of the Transition to Adulthood Alliance, Criminal Justice Alliance has long argued that maturity, not simply chronological age, should be recognised in sentencing. Many young people will find their futures blighted by the acts of stupidity or opportunism they committed this summer. For many, a long custodial sentence will make it difficult to ever get back on track.
Vicki Helyar-Cardwell, Director of the Criminal Justice Alliancewww.criminaljusticealliance.org
1 University of Birmingham (2011) Maturity, young adults and criminal justice: A literature review, http://w w w. t 2 a . o r g . u k / w p - c o n t e n t /u p l o a d s / 2 0 1 1 / 0 9 / B i r m i n g h a m -University-Maturity-final-literature-review-report.pdf2 The Halliday Report (2001), 'Making Punishments Work: A Review of the Sentencing Framework for England & Wales' http://webarchive.nationalarchives.gov.uk/+/http://www.homeoffice.gov.uk/documents/halliday-report-sppu/3 Criminal Justice Alliance (July 2011), Restorative Justice: Time for Action. 4 Gibbs, P. And Jacobson, J. (2009) Making amends: Restorative youth justice in Northern Ireland.
p.1
10 the barrister
Summary trial: too summary?The drive for speedy summary justice means that magistrates’ courts are expected to
be increasingly reluctant to grant adjournments. For example, in Balogun v DPP [2010]
EWHC 799 (Admin), the court reiterated that requests for adjournments should be
submitted to ‘rigorous scrutiny’
By Peter Hungerford-Welch, Assistant Dean (Professional Programmes) at The City Law
School, City University London
On 21 July 2006, the government published Delivering Simple Speedy, Summary Justice (Department for Constitutional Affairs,
2006), which set out plans to improve the speed and effectiveness of the magistrates’ court system. Lord Falconer, then Secretary of State for Constitutional Affairs and Lord Chancellor, wrote in the foreword that the government’s vision was to deliver a criminal justice system that deals with cases ‘fairly but as quickly as possible’. This article suggests that, whilst efficiency is in everyone’s interests, according undue priority to haste may have an adverse effect on the fairness of the trial process.
An aspect of speedy summary justice may be seen in a document issued in December 2009, by the then Senior Presiding Judge for England and Wales, entitled Essential Case Management: Applying the Criminal Procedure Rules (Judiciary of England and Wales, 2009). This emphasises that ‘unnecessary hearings should be avoided by dealing with as many aspects of the case as possible at the same time’. For example, the plea should be taken at the first hearing, or as soon as possible after the first hearing. The guidance goes on to point out that this obligation ‘does not depend on the extent of advance information, service of evidence, disclosure of unused material, or the grant of legal aid’. I would argue that defence advocates may have to take a robust approach in resisting demands for a plea to be entered where, for example, the defence have insufficient information about the nature of the prosecution case and so it is not possible to give proper advice on plea. Moreover, unrepresented defendants should not be pressurised into entering a plea without careful thought as to the consequences of pleading guilty.
The guidance goes on to say that, where the accused pleads guilty, the court should, unless committing for sentence, pass sentence on the same day if at all possible (perhaps using a pre-sentence report prepared for earlier proceedings or a ‘fast delivery’ report prepared the same day). However, care needs to be taken here too, as it is important that the court is in possession of sufficient (and up-to-date) information, both about the offence and about the offender, to enable it to pass the most appropriate sentence.
The drive for speedy summary justice means that magistrates’ courts are expected to be increasingly reluctant to grant adjournments. For example, in Balogun v DPP [2010] EWHC 799 (Admin), the court reiterated that requests for adjournments should be submitted to ‘rigorous scrutiny’. The delay caused by repeated adjournments, as well as adding to the cost to the taxpayer, can cause problems for the victim, the witnesses and the accused in the present case, not to mention those involved in other cases (the longer one case takes to progress through the system, the less court time can be devoted to other cases). However, the courts should be ready to grant adjournments where there is a good reason why it would be unfair (to either side) for the trial to go ahead even though one of the parties is seeking an adjournment.
One of the central themes of criminal procedure at the moment is the early identification of issues. The December 2009 guidance picks up this theme, saying that that where the accused pleads not guilty, the parties must identify the disputed issues at the outset; if the parties do not supply this information to the court, the court must require them to do so. Such early identification of issues assumes preparation of the
case well in advance of the trial. This is, of course, highly desirable; however, funding arrangements for publicly-funded criminal defence work (requiring solicitors to take on a high volume of cases in order to make a living) might be regarded as inimical to such early case preparation.
The guidance also says that the ‘live’ evidence at trial must be confined to the issues which have been identified. As a result, only witnesses ‘who are really needed in relation to genuinely disputed, relevant issues should be required to attend’ and, as the trial itself starts, the court should begin by establishing what disputed issues the parties intend to explore and must ‘ensure that “live” evidence, questions, and submissions are strictly directed to the relevant disputed issues’. This approach is reflected in the current version of rule 3.10 of the Criminal Procedure Rules, which provides that the court ‘may limit the examination, cross-examination or re-examination of a witness, and the duration of any stage of the hearing’. It is likely that defence advocates will be called upon to justify lines of questioning to a greater extent than has previously been the case. Whilst fishing expeditions are best avoided, some speculative questioning by the defence may well be necessary in order to probe properly the evidence being given by prosecution witnesses.
This interventionist approach is supported by a new, five-page, case management form (available from the Ministry of Justice website) to be completed by the parties in Magistrates’ court cases to supply detailed information about the case. The form includes a series of very detailed questions to be answered by the defence, aimed at identifying what is agreed and what is in dispute.
11the barrister
The prosecutor has to list all the witnesses whom the prosecution intend to call. For each witness, the defence have to indicate whether their evidence can be read to the court, and if not, what disputed issue makes it necessary for the witness to give evidence in person. The court then has to indicate whether or not the attendance of that witness is ‘justified’. The form does not say what happens if the court takes the view that the attendance of the witness is not justified but that person is nonetheless called to testify because the defence do not consent to the statement of the witness being read under s 9 of the Criminal Justice Act 1967. Presumably, however, there could be ramifications in any costs order made against the defendant (under the Prosecution of Offences Act 1985, s 18) if he is found guilty. I would argue that that the defence should rarely be penalised for exercising their right to test the prosecution evidence through cross-examination.
It should be borne in mind that, under the Criminal Procedure and Investigations Act 1996, s 6 (CPIA), defence statements (summarising the defence case) are not compulsory for summary trials. However, the detailed questions which have to be answered in the case management form effectively require the defence to provide much of the information that would be required in a defence statement, as set out in s 6A of the CPIA, effectively undermining the exclusion of summary trial from the mandatory defence statement regime which applies in the Crown Court. Care must be taken when completing the form, as the contents can be used as evidence against the accused (as in Firth v Epping Magistrates’ Court [2011] EWHC 388 (Admin), where an assertion in a case progression form that the accused was acting in self-defence was successfully relied upon by the prosecution as an admission that the accused was the assailant).
The form also contains a reminder of the fact that, whether or not the defendant supplies a defence statement, he must (under the CPIA, s 6C) give a notice indicating whether he intends to call defence witnesses and, if so, must identify them. This allows the Crown Prosecution Service to check whether any of the proposed defence witnesses have relevant previous convictions, but also (and more controversially)
could enable the police to interview the proposed defence witnesses, with the concomitant risk of pressure being brought to bear on them not to testify or to change their story.
Another manifestation of the drive for early identification of issues is to be found in the willingness of the courts to allow the prosecution to re-open their case to make good deficiencies identified in a submission of no case to answer (rather than acquitting the defendant on the basis of a successful submission). For example, in R (CPS) v Norwich Magistrates' Court [2011] EWHC 82 (Admin), the prosecution opened the case (a charge of assault) by stating that identification was not in dispute (the section of the case management form completed by the defence raised the issue of self-defence); at the close of the prosecution case, the defence made a submission of no case based on the lack of adequate identification. The prosecution sought to call additional evidence, but the magistrates refused to allow this. Richards LJ said that if the defence were going to take a positive point on identification, it was incumbent on them ‘to flag the point at an early stage, not to wait until the close of the prosecution case before raising it for the first time in a submission of no case’. His Lordship concluded, that the decision to refuse the prosecution application to re-open ‘ran counter to the overriding objective of the Criminal Procedure Rules’. This decision is understandable on the facts of the case but care must be taken, when requiring the co-operation of the defendant, not to dilute the burden of proof.
The desire for speedy justice is also seen in the draft protocol on disclosure in magistrates’ courts, issued in May 2006 (Department for Constitutional Affairs, 2006b). Dealing with an earlier version of Part 21 of the Criminal Procedure Rules (defence entitlement to advance information about the prosecution case), para 1.4 says that, where the material is served on the day of the hearing, ‘defence advocates should, save in exceptional circumstances, expect to be ready to go through that material with the defendant and advise ... there and then without the need for an adjournment. If necessary, cases can be put back in the list to allow the defence sufficient time to consider any material provided’. Similarly, on paragraph 57 of the A-G’s Guidelines
on Disclosure, (defence entitlement to copies of the witness statements of the witnesses to be called by the Crown), paragraph 2.2 of the protocol says that, ‘late provision of such evidence should not automatically result in a trial being adjourned ... In the majority of cases, a competent advocate will be able to deal with the material then and there by the court allowing time before the trial commences, or even during the course of the trial’. It should be noted, however, that, going through the material there and then may simply not be practicable in a case of any complexity or where the material is voluminous. In such cases, adjournments may be necessary.
In Visvaratnam v Brent Magistrates Court [2009] EWHC 3017 (Admin), Openshaw J said that an ‘improvement in timeliness and the achievement of a more effective and efficient system of criminal justice in the magistrates' court will bring about great benefits to victims and to witnesses and huge savings in time and money’. This is clearly right, as excessive delay is harmful to everyone involved in a criminal case. Not only do victims have to wait longer for justice, but also defendants have to wait longer for trials. However, speed must not be achieved at the expense of the right of the accused to a fair trial, including adequate time in which to prepare the defence case and the right to present that case fully.
Peter Hungerford-Welch is Assistant Dean (Professional Programmes) at The City Law School, City University London.
ReferencesDepartment for Constitutional Affairs (2006), Delivering simple, speedy, summary justice, www.dca.gov.uk/publications/reports_reviews/delivery-simple-speedy.pdf (accessed 24 October 2011).Department for Constitutional Affairs (2006b), Protocol for the Provision of Advance Information, Prosecution Evidence and Disclosure of Unused Material in the Magistrates’ Courts, www.judiciary.gov.uk/NR/rdonlyres/98DDD823-0F87-406F-A11E-95E9DFC0F111/0/mags_courts_disclosure.pdf (accessed 24 October 2011).Judiciary of England and Wales (2009), Essential Case Management: Applying the Criminal Procedure Rules, http://www.judiciary.gov.uk/Resources/JCO/Documents/Protocols/applying-crim-procedure-rules-dec-2009.pdf (accessed 24 October 2011).An earlier version of this article appears in (2011) Criminal Justice Matters, vol 84, pp 10-11.
12 the barrister
European account preservation order under the spotlightBy Joseph Kean, Partner, Dispute Resolution Team, Mundays Solicitors LLP
A vital consideration at the start of any court process is whether the proposed defendant will be able to pay any judgment which the
claimant might obtain. Having satisfied yourself that the defendant is “good for the cash”, consideration then turns to whether they may act to avoid payment in some way, by perhaps dissipating or hiding their assets. The position is further complicated when the defendant is resident in a foreign jurisdiction and the claimant will have to enforce the judgment against assets there.| The primary contender for satisfaction of a money judgment is the funds held in the defendant’s bank account. But will those funds be there when judgment is obtained and enforcement attempted?
The European Commission’s proposal To address this question within the EU at least, the European Commission recently proposed a new Regulation introducing a European Account Preservation Order (“EAPO”) to assist with the recovery of debts and damages in cross-border civil and commercial matters. The proposal provides a standardised mechanism by which claimants can, in certain circumstances, obtain an injunction freezing money held by a defendant in accounts across Europe. The order would restrict the account holder’s ability to deal with the funds in the accounts, including making payments and other transfers. Currently the availability of such orders is a matter of domestic procedure, which differs widely throughout European member states. The proposed EAPO would be an alternative to national procedures and in addition to them.
Following a public consultation, the UK Government announced on 31 October 2011 that it has decided not to opt in to the proposal, citing concerns raised in response to the consultation process
(examined below). The Government still intends to participate as far as possible in the final negotiations at EU level in the hope that changes can be agreed which will allow the UK to opt into the proposed Regulation later. Nonetheless, and even if the UK ultimately stays out of the regime, UK companies with bank accounts in other EU Member States or undertaking litigation in European courts will need to take careful note of EAPOs if and when they are adopted.
How will an EAPO work?Under the proposal, an EAPO will be available to a claimant in civil and commercial matters in disputes having cross-border implications (ie., where the bank accounts sought to be preserved are outside the jurisdiction of the court considering the substantive dispute. Applications for an EAPO will be made “without notice” to the defendant, allowing the "surprise effect" of the measure to be preserved. It will be available in two different cases: • a“Section1”EAPO,availableintwo circumstances:o prior to or during substantive proceedings in a Member State (ie, an “interim remedy”); o after a judgment has been obtained in a Member State but not yet declared enforceable in the Member State of enforcement as required. • a “Section 2” EAPO, availableonce a judgment has been obtained in a Member State which is directly enforceable in the Member State of enforcement under usual European enforcement principles.
In both cases, an EAPO will be available from either the court hearing the substantive dispute or issuing the substantive judgment, or the court of the jurisdiction in which the bank account to be frozen is located. In the latter case, however, in order to avoid forum-shopping, the effect of the order will be limited to bank accounts held
within that jurisdiction only.
Conditions of IssueA claimant applying for a “section 1” EAPO will need to show that it has a good prospect of winning its case on the substance, i.e. that its claim is prima facie well-founded, and that there is a real risk, if the measure is not granted, that the debtor would remove or dissipate the funds held in its bank accounts, frustrating enforcement. In addition, the court may require the creditor to provide security to ensure compensation for any loss suffered by the debtor if, for example, the creditor ultimately fails on the substantive claim. The conditions of issue of a “section 2” EAPO are far less stringent. There is no need to show a risk of dissipation of assets and no security is necessary. In fact, the only condition is that the claimant has obtained an enforceable judgment in one EU Member State that it wishes to enforce in another. Once issued, EAPOs will be automatically recognised and enforced in another other Member State without any special procedure being required, and a defendant’s right to challenge the order is largely restricted to alleging that the conditions for issue were not properly met. The defendant’s only alternative is to pay a security deposit in the amount of the EAPO, which would then be lifted.
Obtaining information on the debtor’s accountIn both cases the application for an EAPO must be made on a prescribed form and include full details of the defendant and the accounts to be frozen. Given the difficulties the claimant may have obtaining information about its debtor's account(s), the proposed Regulation requires Member States to provide for a mechanism facilitating that task, either by obliging all banks in their territory to disclose whether the debtor has an account with them or by granting their enforcement authorities access to such
13the barrister
information held by public authorities. Data protection considerations limit personal information exchanged under this provision to that necessary for enforcing and implementing the order.
How is an EAPO enforced? An EAPO will be served directly on the bank holding the account that is to be frozen, which must immediately block the amount of funds specified in the order. The defendant should be notified immediately after the order has taken effect. Funds in the account over and above the amount frozen by the EAPO remain available to the defendant.
Potential difficulties with the proposalSo far so good, you might say, and certainly for a claimant wishing to recover monies owed to it by another European business, the EAPO would provide a welcome additional tool in its enforcement armoury. However, what goes around has a nasty habit of coming around and that same organisation could just as easily find itself on the receiving end of an EAPO issued by the courts of another jurisdiction. The proposal has been widely criticised as being too pro-claimant, with “section 2” EAPOs raising particular concern. As there is no need under this provision for a claimant to show that assets are at risk without an order, a defendant who is willing and able to pay the judgment debt may nonetheless find its bank account frozen without notice, with all the potentially serious consequences that may have for trading. In addition, there are a number of other safeguards missing that UK litigants are accustomed to seeing in measures of this type.
Lack of full and frank disclosureUnder similar “without notice” procedures in the UK, where the defendant is not present to put its case, the claimant is obliged to make full and frank disclosure to the court of all matters the court should take into account when making its decision, including those which may have an adverse effect on the application. There is no similar obligation here and indeed in most Continental European jurisdictions, parties routinely only have to disclose evidence which supports their case and
on which they rely. Freezing injunctions have hitherto been seen as an unusual and exceptional remedy – under EAPOs they may become more mainstream with potentially damaging effects for businesses on the receiving end.
Lack of securitySecurity, in the form of a cross-undertaking for damages, is routinely ordered by English courts making freezing injunctions. While there is power for the court to order security to be provided in the case of “section 1” EAPOs, the amount and conditions are left to domestic law, which differs widely across European jurisdictions. There is a possibility that no security, or only insufficient security, will be available to protect a defendant.
Uncertainty over exempt fundsThe amount of funds frozen by an EAPO is determined by the court making the order. The law of the Member State enforcing the order may permit certain amounts to be exempt from enforcement, to ensure the livelihood of the defendant and his family or to allow a company to continue its ordinary course of business. However, this varies considerably between EU jurisdictions, making matters potentially uncertain for debtors forced to defend an EAPO in a foreign state.
Impact on banksEAPOs will also impact on banks and other account-holding institutions, who may find themselves having to devote more resources to complying with EAPOs served on them and providing account information to claimants. Banks have expressed concern at the considerable additional work they may have to carry out should the use of EAPOs become common. Their entitlement to compensation for this work, likely to be a single fixed fee, is left to national law, as is a bank’s liability for failure to comply with an EAPO served on them.
What do you need to do?As things currently stand, as the UK has opted out of this proposal, EAPOs will not be obtainable in support of claims brought in the UK, nor will they be enforceable against bank accounts
held in the UK. However, in modern business, commercial organisations maintain financial accounts in many jurisdictions. Businesses with accounts in European Member States or litigating in the courts of other Member States will need to take relevant legal advice on the applicability of EAPOs to their situation, whether claimant or defendant. The proposal is still some way off becoming law, as the European Parliament and Council still need to consider it under the Ordinary Legislative Procedure. However, it is clear that, if passed as currently drafted, the Regulation would have a considerable impact on recovery of money judgments in European cases.
Links: The proposed EU Regulation
The UK Ministry of Justice’s consultation
The Government’s statement to Parliament, 31 October 2011:
By Joseph Kean, Partner, Dispute Resolution Team, Mundays Solicitors LLP01932 590 500 www.mundays.co.uk [email protected]
About Mundays:Mundays is a leading regional practice which provides quality advice to corporate and private clients. Established in 1960, Mundays has a diverse client base that includes major international and national companies as well as smaller businesses, individuals and families. Mundays specialises in Banking, Construction, Corporate & Commercial, Dispute Resolution, Employment, Family, Insolvency, Private Wealth, Property, and a wide variety of industry sectors.
About the author:Joseph, Partner at Mundays LLP, became a solicitor in 1990 and throughout his career practiced in commercial litigation and arbitration, working in a wide variety of industry sectors, including aviation, construction and technology
14 the barrister
The Problem With LawyersThe European Union is currently engaged in considering how procedural safeguards for
suspects in criminal proceedings can be enhanced. It is a long time coming.
By Jodie Blackstock, Barrister, Director of Criminal and EU Justice Policy JUSTICE
When the f r a m e w o r k decision on the European arrest warrant was adopted in
2002, the European Parliament and many NGOs called for corresponding minimum standards for suspects. Indeed, the European Commission did present a proposal for a framework decision on procedural safeguards which was debated by the member states’ ministers of justice in the Council of the EU. However, it was shelved because the member states could not agree on whether there was a need for activity at EU level and indeed whether there was a legal base.
That changed with the Lisbon Treaty coming into force which explicitly provides under article 82(2) Treaty on the Functioning of the European Union for minimum rules for suspects in order to enhance mutual recognition of judicial decisions and police and judicial cooperation. The Treaty on the European Union further cements the rights of EU citizens by way of article 2 (foundation on respect for human dignity, freedom, democracy, equality, rule of law and human rights) and article 6 (recognition of the EU Charter of Fundamental Rights; accession to the ECHR). The Swedish Presidency of the EU in 2009 saw through the adoption of the Lisbon Treaty and in doing so, dedicated some of its time to the agreement of a Resolution for strengthening procedural safeguards which reignited work in this area. The Resolution provides a step by step approach, one right, in one directive at a time. Whilst this leads to some artificial debate about what is and is not agreed to be an EU standard (for example the right to information about rights: This is currently limited to
national rights since no EU standards are yet in force), there is now an adopted measure on the right to interpretation and translation (due to be implemented in national law by 2013), and the Commission has presented proposals on the right to information and on the right of access to a lawyer which are currently being debated by the Council and Parliament. Forthcoming are directives on vulnerable suspects, legal aid and a green paper on detention.
Until now the UK has been supportive of these measures. After all, there has been little need to improve our standards in comparison to other member states. The Police and Criminal Evidence Act in England and Wales is probably the most comprehensive set of rules for the conduct of police investigations and prosecutions in Europe. But now we have got to Measure C on the list (the right of access to a lawyer) where one would expect the UK to be the most robust given our adversarial system and presence of lawyers throughout proceedings, suddenly we appear to have got cold feet. As part of the Lisbon Treaty arrangements, the UK, along with Ireland, managed to negotiate an ‘opt in’ protocol to the area of freedom, security and justice (protocol 21). This protocol gives us three months from the presentation of a proposed directive by the Commission to decide whether we will opt in to the instrument. If we do, we can vote in the Council on whether the instrument should be adopted. If we don’t, we can negotiate on the contents of the instrument with a view to opting in a later stage, but we cannot vote and arguably don’t have the same weight in the negotiation process. The UK decided not to opt in to the directive on the right of access to a lawyer.
The protections set out in the measure
The European Commission presented a proposal for a directive which builds upon the ECtHR jurisprudence under article 6 ECHR to provide a set of practical and effective rights. A substantial body of evidence exists to demonstrate the divergence of protection between member states (in particular see a project we conducted jointly with academic institutions: Effective Criminal Defence in Europe (2010)), not least in relation to the access lawyers have to the police station1. The Directive would apply from the moment a person is made aware that they are suspected of committing an offence until the conclusion of the final appeal. It would allow the presence of a lawyer at any questioning by the police; at evidence gathering actions by the police, where the national law allows/requires the presence of the suspect and so long as this would not prejudice the acquisition of evidence; and in any event where a suspect is deprived of liberty. The content of the right would seek to ensure that access is of a sufficient time and manner that would enable an effective defence, that the lawyer is able to participate by asking questions and raising challenges in the police interview and is even able to inspect detention conditions. The right should ensure confidentiality of conferences and correspondence, waiver should be properly informed and understood by the suspect and derogation should be for compelling reasons only.
So what really does the UK object to in all this? Are we not doing this anyway? Some light is cast by the Government’s correspondence with the EU Scrutiny Committee, documented in its 36th Report on 6th July 2011:(a) It would require access to a lawyer from the start of questioning and during searches where lawyers are not
currently present under UK law;(b) The proposal demands presence of a lawyer whereas the UK is increasingly resorting to telephone advice in relation to minor offences; (c) Derogations in the proposal are narrowly drawn and do not allow for current operational reasons to withhold legal communication;(d) Statements made prior to status as a suspect or obtained in breach of a right are deemed to be inadmissible by the proposal.
These concerns ignore the qualifications drafted into the proposal, the actual treatment of these issues in UK law which require fairness to the accused, and the negotiation process which takes place prior to an instrument being adopted in the EU, substantially altering the text in any event. There are many instruments we have opted into which require much improvement prior to adoption, such as the European Investigation Order which afforded virtually no opportunity to refuse a request from another member state for assistance when proposed. Many of the concerns the UK raises with the Directive have already been addressed in the current draft after three months of scrutiny by the Council.
Not only has the UK not opted in to this measure, but it has co-authored a five member state public statement expressing its concerns with the proposal. This public criticism of the Commission is an unusual step. It has created tension between the EU Institutions which is unhelpful. But it is more concerning that the UK has joined with member states that do not afford the same level of access to a lawyer enjoyed here, particularly in relation to police detention and interview: Ireland, France, Belgium and the Netherlands. By aligning with these states, the UK has given legitimacy to their resistance to improve defence protection. The Committee for the Prevention of Torture has repeatedly explained how important presence of a lawyer is from the outset of proceedings in ensuring suspects are not ill-treated and that any vulnerabilities are identified, as well as ensuring suspects are properly advised as to what is happening (see CPT Annual
Report 2011). Perhaps the most revealing aspect of the statement is its objection to the omission of rules on legal aid in the proposal: in a time of e c o n o m i c and financial constraint these member states argue that the impact of legal advice on public e x p e n d i t u r e must be considered.
As the G o v e r n m e n t pushes ahead with the Legal Aid, Sentencing and Punishment of Offenders Bill, it is clear that the intention is to severely cull spending on lawyers. Clause 12 ominously suggests the expansion of telephone advice in police stations rather than presence of lawyers. It seems the gamble of additional expenditure posed by this measure was too much. This is a real disappointment when the UK is in such a strong position to lead the way in demonstrating the value of lawyers in criminal cases, rather the problems we cause to the exchequer.
Jodie Blackstock Director of Criminal and EU Justice Policy JUSTICE 59 Carter Lane London EC4V 5AQ Tel: 020 7762 6436 Fax 020 7329 5055 www.justice.org.uk
1 Following the case of Salduz v Turkey (2008) 49 EHRR 421 which confirms that suspects must have access to a lawyer
as from the first interrogation by the police where admissions obtained from the suspect are to be used to support a conviction, otherwise this would prejudice the right to a fair trial. The UK Supreme Court confirmed this principle in Cadder v HM Advocate [2010] UKSC 43 with respect to Scotland, as has the Conseil Constitutionnel in France. But Netherlands, Belgium and Ireland have not changed their laws. Other member states allow varying amounts of access to a lawyer and to disclosure of evidence.
15the barrister
The international expansion of the English BarGuy Hewetson writes that chambers need to target overseas markets and base
themselves in the fast-growing jurisdictions both to capitalise on new opportunities and
to hedge against a domestic downturn
For over a decade the English Bar has been going through a revolution of change. It is the last bastion of the professional services sector to
deregulate and with the imminent implementation of the Legal Services Act 2007 there will be greater changes than have ever been experienced in the history of the Bar. This stems largely from the increase in competition at the Commercial Bar and a proposal to provide a greater level of access to justice from the Publicly Funded Bar. Many commentators sincerely hope the latter will bear fruit although one has to remember the planned cuts in publicly funded work. One experienced civil practitioner, Roman Poplawski from 33 Bedford Row, remarked that, since the average member of the public would only rarely need to call on the Bar’s services in his/her lifetime and primarily for criminal and/or family matters, it is ironic that practitioners who want to dedicate their careers to fighting injustice, may themselves now face injustice from relentless government funding cuts and in turn render their ‘calling’ an unaffordable career choice.
There are three types of sets at the Bar. The trailblazers, those waiting to see what other sets are doing, and those who feel they are fine just the way they are and always have been. The latter are undoubtedly going to struggle to compete as the rules of engagement are changing swiftly, coupled with the introduction of direct access and alternative business structures which will come into play at the Bar next year. There are two ways that chambers can respond to the challenges: to become more professional in their management, and to think about overseas opportunities. The recession, like others before, has been good for the Commercial Bar. Recessions cause an increase in disputes and therefore more work for commercial barristers. Yet, it is also the case that competition has intensified, which has
caused downward pressure on fees. The Commercial Bar has had to adapt to a rapidly changed - and changing - environment. Many lessons learnt at the Commercial Bar over the last 10 years are now being implemented across other areas of the Bar. Chief among these is the professionalisation of the management of chambers. Many progressive, modern-thinking commercial sets have seen the benefits of separating management from the clerks’ room, and then hiring the right senior managers - whether a CEO or a senior clerk or both - to steer chambers strategically through the evolving legal landscape. However the ramifications by not making the right hiring decisions can already be seen.
Gone are the days where one individual could be expected to manage chambers, run the clerks’ room and be out of chambers three or four days a week bringing in new business. Apart from anything else, it does not make commercial sense. Paying someone a six-figure salary to be a good diary manager is no longer acceptable.
That is not to tarnish all managing clerks with the same brush. There are many excellent clerks, who run excellent ships. However, that is no longer enough. Commercial sets have to become more commercially focused if they are to survive and prosper. The Bar is some 15 to 20 years behind law firms in terms of having to become more commercially savvy and putting the processes and people in place to be more proactive, and successful, in winning new business. And, just as the commercially focused law firms have based themselves in new markets, so the Bar would be well advised to follow suit. Many commercial sets that receive instructions from international clients have been seeking ways to build on this revenue stream. Getting close to the clients is good business practice.
Among the pioneers is 20 Essex Street, which has established a fully operated chambers outside the UK within Maxwell Chambers. The set was invited by the Singaporean government to help establish Singapore as a leading centre for international arbitration. Brian Lee, Joint Senior Clerk, says that this was a deliberate strategy. “Singapore invested in facilities, and promoted itself as a user-friendly environment perfectly suited for international arbitration. The government actively encourages and acknowledges the need for arbitration by the international business community. For the past two years we have had a barrister working permanently in Maxwell Chambers, with David Lewis being the first and now Simon Milnes. No longer do lawyers in the region have to wait for London to open to get assistance from those in need of the services of a barrister” He continues: “Singapore is a small, independent, neutral country, with outstanding local lawyers, but also friendly to those from overseas, which makes the city state the natural venue for arbitration for those in Asia and indeed the Pacific region.” It is also helping to present Singapore as a viable alternative to Hong Kong as a venue for international arbitration. As Mathew Kesbey, Joint Senior Clerk at 20 Essex Street, notes, “Particularly in the last few years there has been an increasing investment focus in Asia with a surge of foreign investors within the region. Hong Kong has long been recognised as one of the leading arbitration centres in Asia, but with its close proximity to China, the neutrality of Singapore is being seen by some as a more attractive option. “It is this neutrality and the investment in the infrastructure that was a driving force for us wanting to set up our office in Singapore where we are able to service a long established client base in Asia from our fully staffed office within
16 the barrister
Maxwell Chambers. For many years now 20 Essex Street has been investing in Singapore, which we believe has been pivotal to the success of this venture. Local lawyers are seeing a significant increase in arbitration disputes and, at the same time, view chambers as complementing their work.”
In a recent speech by the Singapore Minister for Foreign Affairs and Law, Mr K Shanmugam said, “A sound legal infrastructure has to be complemented by an outstanding set of professionals who practice in this field. Arbitration practice in Singapore, in that context, is going from strength to strength, and we are continuing to attract top-notch individuals, both counsel and arbitrators, because we have a very open regime. We now have a very substantial international presence in Singapore. Eight of the world’s top 10 law firms by revenue have set up offices here. We currently have over 100 foreign law firms and over 1,000 foreign lawyers, complementing our 800 local law firms and slightly under 4,000 local lawyers. Our Qualifying Foreign Law Practice (QFLP) scheme has played a role in developing our international arbitration scene. Five out of our six QFLP license holders have set up arbitration practices or expanded existing practices in Singapore since they were awarded their licenses in December 2008. Going forward, we will continue to grow our arbitration sector through calibrated measures.” The investment is enhancing the chambers’ reputation. They are gaining local knowledge and earning goodwill among local lawyers, which could also reap benefits in the UK. The set is now using this base as a springboard to other places such as Vietnam, Indonesia, Malaysia, Korea, and increasing opportunities in China and Australia. At the same time, being on the ground the set can greatly assist the Singaporean government in building trust with the wider spectrum of investors.
This was reaffirmed by the Singapore Permanent Secretary for Law, Mr Pang Kin Keong at a recent conference in Ireland where he said, “ Particularly with the rise of India and China, the centre of gravity of global economic activity is gradually shifting to Asia. This
is nothing new but conventional thinking by now, but it bears repeating in the context of a discussion on arbitration in Asia. The IMF predicts that within 5 years, Asia’s economy will be 50% larger than it is today, and that by 2030, the region could become the world’s largest economic area. On the investment front, data from UNCTAD shows that foreign direct investments in Asia in 2010 were up 18% from 2009.”
He continues, “As for Singapore’s legislative framework, the Government monitors closely international developments and solicits constant feedback from stakeholders, to ensure that our laws remain up-to-date and provide the best framework possible for arbitration. Singapore’s experience and circumstances are unique because every country is unique, but I think the criteria critical to establishing a good arbitration venue are applicable to many jurisdictions. To try to sum up in a nutshell, it is essentially about providing an overall environment in which parties can arbitrate efficiently, arbitrate in confidence, and with a high degree of predictability about how things will work.” Opportunities also lie in another part of the world. In the Middle East, the DIFC has recently opened its doors to a much wider range of litigation cases. Many believe this is going to lead to an explosion of cases being brought before the court. Kaashif Basit, a barrister and partner at KBH Kaanuun in Dubai, says, “The Middle East has been, and will remain, an important source of work for the English Bar, particularly in respect of high-value cross-border disputes. The question for the English Bar is whether it wishes to invest in Middle East relationships directly on the ground, or to continue to rely on law firms as a source of instructions. “Those chambers and barristers who are prepared to invest in direct access to clients in the region would undoubtedly benefit from both high-quality work and attractive fee income.” So what conclusions can be drawn? If chambers are to compete proactively on an international stage, it is only a matter of time before sets will have to look further than having an annex in a
foreign jurisdiction. Again, the comparison with law firms is instructive. Twenty years ago, many leading law firms in the UK, including the magic circle firms, were confident in their business model as the instructions continued to flow in. Then, with the influx of US firms setting up in London and firms further down the rankings list starting to vie for the same work, often at more competitive rates, the top-tier firms realised that a more commercial and proactive approach to how they won business and serviced their client base was the only way to ensure their position in the market. Being at the top of the chain is only the first step – staying there is quite another matter, as some sets are now starkly realising. The English Bar is universally revered as being the pinnacle in excellence in legal services, and rightly so. The uniqueness of the Bar is its greatest strength, but this should not be the cause of resistance to change. On the international platform, demand for access to the Bar is set to increase at an exponential rate in the coming years. Chambers are now more than ever going to be competing against solicitor advocates as they aggressively seek to retain this work in-house. For the moment at least, some would say the Bar is not as commercially switched-on as it needs to be to make a dominant play on this playing field. However, the visionaries at the Bar, and they are increasing in number, can clearly see that for the Commercial Bar at least, direct access is the platform which will allow the Bar to level the playing field and for chambers to become global businesses.
Guy Hewetson is a founder and partner of Hewetson Shah, a firm of leading legal search and recruitment specialists. Hewetson Shah offers expert full-service assistance in search and recruitment for the Bar. www.hewetsonshah.com
Hewetson Shah LLPMain: +44 (0)203 008 5595Direct: +44 (0)203 008 5598Mobile: +44 (0)7531 674 203
17the barrister
18 the barrister
It is a simple fact that a £4bn profit legal market is bound to be attractive to new entrants with low cost operating structures. These new entrants bring with them existing large loyal
customer bases. The questions we should be asking ourselves are how do we react? Do we work in co-operation? Do we compete head on? Do we adopt a mixture of both? Or do we firmly stick our collective heads in the sand and hope it all goes away?
The last of these really isn’t an option if you want your chambers to survive these increasingly-competitive times!
The changing landscapeAccording to Professor Stephen Mayson, the impact of these new entrants could be catastrophic with the shift of over £1.5bn from traditional legal practices to them. This would primarily impact the provision of retail legal services, and could bring about the potential demise of over 3,000 law firms. These law firms tend to be multi-disciplinary high street practices. What’s more, these law firms are the Bar’s clients. So what’s the impact on chambers’ and what are they going to do about it?
The market is also likely to see an over-supply of law graduates, some of whom will join the ranks of the new entrants offering a more commoditised version of law, whilst some will follow a more traditional route into law firms the length and breadth of the country. Others will struggle to find work. This could present an opportunity for chambers who are considering the hiring of paralegals for high volume, low value work. Effectively chambers would be getting relatively cheap labour and have the ability to provide an end-to end service to the client. For example, it is possible to use paralegals as the front end for Direct Access where there is a lot of preparation work and liaising with members of the public. There is also space in the market for the establishment of paralegal businesses who would then be able to outsource their skills to chambers as and when required.
Simultaneously we will see the increase of legal process outsourcing and off-shoring, where firms engage with overseas suppliers to handle cases in order to maintain a low cost base. Again, this is an option for chambers seeking to establish a ProcureCo or other such ABS style business where they could run the whole supply chain, outsourcing the routine legal processing. However, this would require a significant understanding of the legal process outsourcing market and a great deal of time management to ensure quality and service standards are maintained.
Client expectations are also evolving more rapidly than before. I must agree with Chris Kenny, Chief Executive of the LSB in his recent address to the Westminster Legal Policy Forum when he spoke about the changing expectations of clients and the legal industries need to meet them. Today’s technologically-savvy consumers expect their lawyers to utilise a mix of face-to-face correspondence, telephone and online advice. As many as 50% of individuals make their initial contact by telephone, many having previously used search engines such as Google to establish an understanding of the chambers and members expertise prior to calling.
The urgency around their services search is also increasing. Chris Owen, Chief Executive of St Philips was correct when he stated some time ago that clients want “a good service at a good price .. and they want that service now”. The world we live in is information based. People are used to having information at their fingertips and are impatient if it’s not forthcoming. They no longer sit around and wait for information to come to them, they actively go and get it, usually via the internet and peer recommendations.
Another thing to remember is that clients are consumers, and as such behave in the same way. Consumers are much more likely to shop around based on a priority list which includes quality of customer service, recommendation, timeliness and price. They do not
necessarily make a decision based on price alone, particularly if their matter is one of great importance to them. This is where chambers need to be more proactive in marketing their wares, providing full details of the services they provide.
Disruptive technologies are also driving change within chambers. The advent of social media is changing the way we do business. Chambers need to be much more reactive to the needs of clients. How do those clients want to be communicated with and more importantly, when? What technologies do fee earners need? Do they need to be truly mobile? It is inevitable that there will be other technologies invented that will require chambers to re-think the way they work, the services they provide to their staff and their engagement with their clients. Chambers need to be keeping an eye on those service industries that are further developed to research which technologies are being used that could be of benefit to them.Finally, for those involved in public-funded work, there are likely to be significant changes ahead. How chambers decide to deal with Legal Aid could be crucial to their success. Bidding for contracts outright would not be recommended. Having organised numerous ProcureCo events in the last year to look at how chambers could manage these competitive processes, it became evident that bidding for a whole contract alone is not considered to be a sensible option. The tendering process is not an easy one and the requirements for supervision would increase the cost base of chambers to such an extent that benefits of winning the contract would be eroded. Therefore, tight collaboration with other law firms and providers seems to be the most practical way forward.
The probability of an ‘NHS Direct’-style Legal Aid operation looks increasingly likely. This will undoubtedly provide public sector cost savings for the government in the long-term, but who will run the service, who will be
The changing face of legal services and Chambers’ need to respond.By Catherine Bailey, Managing Director, Bar Marketing Limited
19the barrister
given access to Legal Aid and how will it facilitate the needs of the most vulnerable in society?Many questions currently remain unanswered. However, one thing is clear, chambers need a business and marketing strategy to enable them to survive and thrive.
Changes and impactsWe are witnessing structural change in this industry now. The advent of Alternate Business Structures, LLPs and ProcureCos are all possibilities for providers of legal services. However, they are in themselves not a strategy. They are simply possible structures which may, or may not, be beneficial in the operation of chambers.
Rather than select a structure, chambers need to identify a sustainable strategy and consider an appropriate structure after they have made these initial important decisions. They need to understand the likely direction of the market and be prepared to differentiate based on their real strengths. They need to decide which direction they are heading and how they are going to get there.
What market are they in? What do they want to be in? What is their competitive advantage? What do their clients want?
Chambers must be clear about their real strengths and be prepared to build a strategy around them in order to survive. Equally they need to acknowledge their weaknesses and determine a strategy to improve them, or to actively avoid that part of the market entirely. They must fully consider what they need to provide for clients who are prepared to pay for their services. That might include the provision of integrated services with other professionals such as accountants, insurers, surveyors and others. It might be as simple as finding a niche close to chambers and then recruiting the relevant Barristers to service that niche, thus building a specialism in that area and marketing the service as experts in this particular field.
Clients’ desire for online legal services also needs to be addressed by chambers. We are now at a point where the users of web based technologies have exceeded the more traditional clients. This is an opportunity for chambers to match client desire and provide cheaper online
services. It is an example of the need to place clients at the centre of a law firm’s strategy, and to appreciate how technology is an enabler to this strategy.
Chambers directors need to look at how they put the client at the heart of the operation and determine what really “adds value” to the client and the client experience. They need to find ways of achieving this without increasing the cost base to chambers significantly.
We should also not dismiss the possibility of established law firms, new entrants, funders, technology partners or ProcureCos driving joint ventures. In the chambers of the future, there is no one-size-fits-all, but what is clear is that the established and traditional method of providing legal services must change; it must change because new lower-cost entrants will cause it to; it must change because clients demand it; it must change if chambers want to survive and maximise upon the opportunities presented to them within the evolving marketplace.
[email protected] 434 5072
Struggling to makeyourself heard?
Let us give you a voice!
We provide every marketing service:
Bar Marketing, with over 10 years’ experience workingclosely with chambers, understands the way you work.
in-house marketing supporta fully outsourced service
Add to your marketing skills – not your headcount
planning & communicationsmanaging press, events & webinars
Sometimes it’s not the piano
that needs restoring, it’s the pianist
Make a difference to musicians’ lives by leaving a Gift in your Will
7-11 Britannia Street, London WC1X 9JSChairman The Hon Richard Lyttelton | Chief Executive David Sulkin
Registered Charity No. 228089
For more information, call 020 7239 9100 or
visit helpmusicians.org.uk
20 the barrister
Bar council calls on house of lordsto listen to warnings on legal aid cuts
Solicitor general speaks on the value of Justice
BAR COUNCIL SENDS DELEGATION TO CHINA
The Bar Council, which represents barristers in England and Wales wrote to Peers to voice its concerns around the Legal Aid, Sentencing and Punishment of Offenders Bill
The Bar Council addressed the All-Party Parliamentary Group for Legal and Constitutional Affairs, who met to consider the Bill. The meeting was chaired by Lord Hunt of Wirral and addressed by Stephen Cobb QC, Chairman of the Family Law Bar Association and of the Bar Council’s working group on the Bill.
Peter Lodder QC, Chairman of the Bar Council, said:
“Despite the warnings of the Bar Council and other concerned organisations, the House of Commons has done little to change the Legal Aid, Sentencing and Punishment of Offenders Bill.
“In the Lords, we will maintain our campaign to highlight the devastating effect that this Bill will have. A key example is the removal of private family law cases, almost in their entirety, from the scope of legal aid. Distressed parents will be left abandoned and will be forced to represent themselves. Courts will become clogged and far from saving money, delays will be greater and both societal and fiscal costs will increase.
“Other proposals also hit the most vulnerable the hardest. Many with valid claims in clinical negligence will be unable to gain legal redress for wrongs caused by others, while those facing problems with debt and benefits will be unable to access vital legal advice and assistance.
“The House of Lords has an important constitutional duty as a revising chamber. We hope that Peers on all sides will persuade the Government to recognise the real consequences of these drastic proposals, so that a realistic Bill can be returned to the Commons. The public interest and the interests of justice demand no less.”
Edward Garnier QC MP, Solicitor General for England, Wales and Northern Ireland has stated that the current economic climate must not be allowed to damage the legal system and those it serves.
Speaking at The University of Northampton (17 November 2011) as part of the 2011-12 High Sheriff [of Northamptonshire’s] Lecture Series, Mr Garnier said:
“The Government were left with very little money when they came to power. I supported the campaign against the closure of the Magistrates Court in Market Harborough, which resulted in its nearest equivalent being in Leicester, some 15 miles away.
“Cost cannot outweigh the need for law, and this is the circle that must be squared. We must reduce the budget, but not the administration and delivery of justice.”
Talking about his role to over 100 students, staff and guests, Mr Garnier reflected on current challenges for the legal profession and justice. He added:
“I act as legal advisor to the Government and the Queen while protecting the public interest on matters such as the laws of charity and contempt of court. My role is to ensure that legal cases are properly administrated and that justice is delivered fairly, both for victim and accused.
“We need universities to continue producing high calibre graduates who are experts in the law. Not just for their own prosperity, but also for their own understanding of life and the benefits they can subsequently bring to society.”
The Bar Council, which represents barristers in England and Wales, is sent a delegation led by the Chairman of the Bar, Peter Lodder QC, on a business development visit to China in November
The visit was part of a long-term strategy to raise the profile of the English and Welsh Bar in China, promoting barristers’ expertise in international dispute resolution as advocates and specialist legal advisers.
The Bar Council hosted seminars in Beijing on Tuesday 22 November and Tianjin on Thursday 24 November, which was chaired by Peter Lodder QC and aimed at Chinese commercial lawyers and in-house counsel.
The seminar in Beijing looked at international arbitration from both English and Chinese perspectives, and explore how it is conducted and perceived by PRC law firms and the ways in which barristers can help. The Tianjin seminar, co-hosted by the Tianjin Lawyers Association, focused on competition law and the Bribery Act.
The Bar Council also hosted a reception for alumni of the Chinese Lawyers’ Lord Chancellor’s Training Scheme (LCTS) at the residence of the British Ambassador in Beijing. The event celebrated the success of the programme and highlighted the strength of the friendships that have grown between the English and Chinese legal professions.
Peter Lodder QC, Chairman of the Bar, said:
“The widening of international practise opportunities has been a major focus for the Bar Council. China is an important market for legal services. We will build upon existing links to forge an even closer relationship.
“In our seminars we will demonstrate the high quality, high value services offered by the Bar and explore opportunities for further collaboration with local Bar associations and law firms.”
newsround
up
21the barrister
Legal aid cuts will mean more employment tribunals, Citizens Advice warns
Legal sector to gather for first major summit on new-look legal landscape
Soldiers and law students prepare for international crisis
Abolishing legal aid for employment advice will have the perverse effect of increasing the number of cases that end up at an employment tribunal, national charity Citizens Advice warned.
Far from achieving the government’s objective of saving money and resolving disputes at an early stage, it predicts that the move will have the opposite effect. It is urging the government to rethink planned legal aid cuts or else find another way to fund the employment-related information, advice and assistance of the kind currently provided by Citizens Advice Bureaux and others to both workers and employers.
In its response to the government’s consultation on promoting economic growth through a strong and efficient labour market*, Citizens Advice welcomes the government’s commitment to enforce fundamental employment protection against employers who try to gain an unfair advantage by exploiting staff.
But it says this pledge is meaningless unless people continue to have access to the specialist legal advice that plays a key role in resolving disputes and potential disputes at an early stage, thereby averting thousands of employment tribunal claims.
Citizens Advice Chief Executive Gillian Guy said:
“We strongly back the government’s commitment to ensure that rogue employers determined to operate outside the law are not allowed to unfairly undercut business rivals by exploiting their workers. We agree absolutely that the most vulnerable workers – those most likely to be exploited by unscrupulous bosses – must be effectively protected.
“But abolishing legal aid for employment cases is no way to achieve these very laudable aims. If the legal aid cuts go ahead, Citizens Advice Bureaux will no longer be able to offer the specialist legal advice and casework that helps resolve more than 3,000 employment problems every year, most involving vulnerable workers in low paid, low skilled work, who have nowhere else to turn for help.
“The government still has time to rethink these plans and prevent legal aid cuts undermining its efforts to promote growth through a strong and efficient labour market, and to create a level playing field that is fair to workers and decent employers alike.”
The Law Society’s Law Conference, the first of what promises to become a landmark annual event for the profession, will take stock of the new-look legal services market and focus on how firms and in-house lawyers can develop their businesses further.
Law Conference, due to take place in September 2012 at Celtic Manor Resort, Wales, will see solicitors and those who work with the profession gather to share a wealth of information and ideas covering pressing issues for the legal sector and those it serves, including new business models, opportunities and challenges in globalisation, technological changes, business strategy for successful law firms, mediation, commercial property, commercial law and regulation and risk, to name a few.
Law Society President John Wotton said: “With change comes the opportunity to develop new ideas, innovate and share experiences. This conference will take on board the changes we have seen under the Legal Services Act, including alternative business structures and outcomes focused regulation, not to mention changes to civil justice and other areas of law.
“By September next year we, as a sector, will have a better feel of the direction this new-look legal market is taking. Often, great ideas and valuable experiences go unnoticed and unshared. The aim of the conference is to pull together all of that information under one roof and discuss best practice for the way forward and ensure solicitors remain competitive.”
Opportunities for attendees to speak on one of the topics covered at the conference remain open. Find out more about the two-day event and how to apply call Steve Rudaini, The Law Society +44 (0)20 7316 5624
Army officers and students have joined forces to plan for an international crisis.Postgraduate students from the University of Essex’s School of Law and Human Rights Centre and 16 Air Assault Brigade officers worked together at Colchester’s Merville Barracks to plan a response to a fictional humanitarian crisis in Africa.Exercise Demeter’s Eagle involved 30 students studying for Masters in International Human Rights and Humanitarian Law, while the Army officers brought operational experience from Iraq and Afghanistan.The exercise was based around the fictional countries of Tytan and Petraceros. Both countries are beset by a humanitarian crisis and accompanying insurgency. At the invitation of both governments an international force has been called in to stabilise the border area, where insurgents have attacked refugee camps, intimidated local residents and recruited child soldiers.After introductory briefings, the students and officers worked in mixed groups to draw up a plan for operations taking account of both military and civilian factors. The plan was then briefed to Colonel Hugo Fletcher, Deputy Commander of 16 Air Assault Brigade, and Professor Geoff Gilbert, head of the University’s School of Law.Colonel Fletcher said: “16 Air Assault Brigade provides the Army’s high-readiness, light, short duration intervention force. This scenario is exactly the kind of situation that 16 Air Assault Brigade could find itself tasked to deal with. Our troops can expect to come across staff from aid agencies and international organisations already operating in the area, which is precisely the kind of employment that these students are working towards.“It is vitally important for all involved in these difficult and demanding situations to know how other institutions think and operate, and it is that mutual understanding that we hope to develop through this exercise.”Professor Gilbert said: “This exercise is an essential part of a postgraduate student’s preparation for going into humanitarian operations.“It has been running since the mid-1990s and grew out of the realisation that our students were going on to work alongside the military in the more challenging parts of the world. As a university, we felt it was important for them to be prepared for that and also help the Army improve its awareness of international humanitarian organisations.”
newsround
up
22 the barrister
The legal sector has
seen considerable
change in recent years
and without going
into detail on all the
influences impacting
upon the market place, there is no doubt
that organisations operating within
the legal market will have to adapt to
change or face an uncertain future.
Change in any market place is of course
natural. Technological advance dictates
that consumer goods manufacturers
have to drive forward product change
as a matter of course, but in the legal
sector the basic provision of services
has been relatively static. The internet
has provided some on-line models
and the arrival of intermediaries have
resulted in something of a challenge
to the conventional law firm model.
The Legal Services Act and Alternative
Business Structures is ushering in
change, the full extent of which is hard
to judge, but what is clear is that those
operating within the legal market will
have to ensure that their organisation is
well structured to meet the needs of a
faster moving market place. This could
result in something as subtle as a slight
change in emphasis in the way services
are offered or may dictate a complete
organisational refocus or restructure. As
ever some may be slow to change and
as a result may have a limited life span.
All businesses should have a clear
strategy that defines what products
or services they market, who those
products/services will be marketed to
and to articulate why clients or customers
should buy a particular product/service.
There may well be longer term strategic
objectives to consider. These could
range from market share in a particular
sector, through to personal objectives
of Directors, such as divestment of
a business at a particular value at a
particular time. The need to plan is
somewhat taken for granted yet, many
organisations both within the legal
sector and outside of it, do not make use
of structured strategic planning tools.
Given the changes in the legal market
place it is important for Barristers to
develop a clear strategic vision and
thereafter to deliver that vision.
Strategic Planning Tools and
Techniques
There are several easily understood
strategic planning tools and techniques
that can be employed by Chambers.
Segmentation Analysis and Niche
Marketing
Segmenting the market is a very
important concept in all forms of
marketing. The approach suggests
that different parts of the market
place have different needs and that
if an organisation can align itself, or
align individual services, to individual
market segments then it will appear
more focused and relevant. Clearly,
this requires some tailoring of services
to specific parts of the chosen market
segment.
We are all subjected to examples of
segmentation on a daily basis. Financial
institutions have different brand names
aimed at various types of customer.
Whilst in the airline industry several
‘classes’ of travel often exist on the same
aircraft.
A tighter approach to segmentation is
that of ‘niche marketing’. This is a tactic
that is employed widely in the services
sector and in particular in the business
to business sector. The approach is one
that identifies a highly specific group
of target buyers and results in services
being specifically designed for that
group. It is quite possible that we may
see the emergence of truly national legal
brands serving the private client market
but may well see some teams break off
to create highly focused single service
law firms. We could also see more highly
specialised commercial law teams
such as media/construction/aviation
etc. whilst larger international firms
consolidate their international position.
Clearly the way Chambers serve these
organisations needs to reflect their
particular needs.
Niches can be attractive when the
customers within that niche are likely to
pay a premium for a service that directly
addresses their needs. Niches can also
be attractive even when a premium price
is not obtainable, if additional profitable
market share can be obtained.
These principles can be seen within the
Bar as a direct result of specialisation
and as such it would be easy to conclude
that the profession understands
segmentation and has done so for
many years. However, specialisation
is only a component of segmentation.
For example, there is little evidence
of changes in operating procedures,
Strategy Formulation in a Changing MarketGiven the changes in the legal market place it is important for Barristers to develop a
clear strategic vision and thereafter to deliver that vision.
By Stephen Bedford, Managing Director of the Strategy Consultancy and Marketing
Outsourcing business Conical
23the barrister
service levels or indeed branding for
different types of Barrister client. The
main portal for most organisations – the
web site – rarely articulates a segmented
service and the emphasis is often on one
size fits all. For a business to be able
to respond to changing market needs
it needs to offer service packages that
appeal to the different segments of
the market place and then to promote
these in a coherent way. This will help
separate the business from its less
focused competitors.
Service segmentation opportunities
can be identified by listing the target
organisations or client types the
organisation is looking to attract and
then looking at creating particular
service packages to meet the needs of
that client type. This could impact upon
the duties of the clerking team, the way
a client is billed, pricing, the web site
and so on.
Choosing the target market segments
may not be a straightforward process.
What may be profitable now maybe a
segment that is about to see the arrival
of new competition or perhaps see
a reduction in demand or price. An
example of this from the law sector
could arguably come from wills and
probate work. Those high street firms
that have a strong wills and probate
team may well have ridden out the
current recession better than those that
are exposed to commercial property
and transactional commercial work.
However, this sector is one that will
probably see the hottest competition
in the coming years from alternative
suppliers, on-line models and so on. As
such market segments should be looked
at in terms of their growth potential,
the relative competitive strength of the
organisation and also the margins and
profitability that are available within the
segment.
SWOT Analysis – Strengths Weaknesses
Opportunities and Threats
This is perhaps the most widely used
strategic planning tool. It provides
useful information about the current
strategic position of the business or
organisation and it can be used in all
sectors. It is remarkably simple to use
and provides valuable information for
business planning.
A SWOT analysis involves the creation
of a list of organisational Strengths,
Weaknesses, Opportunities and
Threats. If the exercise is opened up to
a relatively large number of people the
analysis can identify consensus within
the organisation. Most organisations
use SWOT analysis as an internal tool.
It can be used to good effect if a select
group of clients, peers, referral bodies
and possibly even suppliers are asked to
complete the exercise.
Experience suggests that the views of
clients do not always correspond with the
views of those within the organisation.
Where there is a gap this is potentially
worrying and is something that needs
to be addressed and is suggestive of
an organisation that is perhaps losing
contact with the market place.
Listing an organisation’s strengths,
weaknesses, opportunities and threats
achieves nothing in itself. What is of
course required is some form of action
plan to make the most of the strengths,
evaluate and pursue opportunities,
protect against threats and address
weaknesses.
Implementing Strategic Change
Strategic analysis of an organisation
can, perhaps with some external
support, be achieved relatively easily.
Making the required change is the
most challenging issue. A strong clearly
defined management structure will
greatly assist in implementing changes
in strategic direction. Chambers or
indeed law firm Partnerships, often rely
upon consensus building management
processes which can result in something
of a blurred strategic outcome.
Where a strategic planning process
identifies a likely need to discontinue
a particular service then this is often
linked to individuals with strong
personalities who will resist the
change. As such, perhaps the biggest
strategic planning challenge of all is
that of decisive leadership and creating
working environments that respond to
and welcome change.
Even when a business has strong
leadership there will always be some
resistance to change. Some people
respond to change slower than others
and these people need to be supported
through the change management
process and may well need some
encouragement to adopt changes as well
as some positive reinforcement.
Closing Comments
Given the changes happening in the
legal market place with new structures
and services evolving, Chambers need
to plan clearly, change direction quickly
and above all, have market place appeal.
There are plenty of useful strategic
planning tools available for Chambers to
consider and these can be used to good
effect. For these tools to be used to good
effect organisations will need strong
leadership and an ability to implement
change. Analysis alone will not deliver
this.
The Author
Stephen Bedford is Managing Director of
the Strategy Consultancy and Marketing
Outsourcing business Conical. He is
a Fellow and Course Director of the
Chartered Institute of Marketing. He is
author of reports on Barrister, Law firm
and Accountancy Marketing.
T 01727 844000
e-mail: [email protected]
24 the barrister
Legal Aid Bill proposals- the victims will be the victims here Under current rules, there isn’t a level playing field between claimants and
multinational companies. The provisions of the Bill will tilt the balance even further
against complainants in these cases.
By Peter Frankental, Programme Director - Economic Relations Amnesty International UK
Amnesty International
is deeply concerned
that clauses of the
Government’s Legal
Aid, Sentencing
and Punishment
of Offenders Bill (the Bill) will have a
devastating effect on access to justice
for the overseas victims of human rights
abuses by UK multinational companies.
The proposals to take success fees from
claimants' damages instead of from
defendants and to make claimants'
insurance premiums non-recoverable
will have the effect of severely reducing
the ability of law firms to take on such
cases.
Victims of harm committed by UK
multinational corporations while
operating overseas, are one group
of complainants that have been
completely disregarded in Lord
Jackson’s proposals for reform of civil
litigation costs. Consequently, the
unusual circumstances of litigating
such rare cases have not been reflected
in the Government’s Bill. In view
of our research into human rights
abuses caused by UK companies while
operating outside the UK, particularly
in developing and emerging countries
in the South, this is of huge concern to
Amnesty. Not only is access to justice
in such cases a fundamental right, but
such litigation serves a preventive role
in deterring other companies from
committing future harm.
While ignored by Lord Jackson and the
Government, these cases did not escape
the notice of Professor John Ruggie,
who wrote to the Justice Minister in
May 2011 in his capacity as Special
Representative of the UN Secretary-
General for Business and Human Rights,
and cautioned that “three related
aspects of the proposed reforms could,
when implemented together, constitute
a significant barrier to legitimate
business-related human rights claims
being brought before UK courts in
situations where alternative sources of
remedy are unavailable”.
The Government in response has argued
that the cases of concern to us could
continue to be taken once the changes
are implemented, and that the costs
involved would be more proportionate
to the damages at issue. The Justice
Minister, Jonathan Djanogly, has said
that “I am not persuaded that there
is anything fundamentally different
about these types of cases which
would warrant an exemption from our
proposals.” The Minister has drawn
attention to a number of measures
that the Government is introducing
that would help claimants including
Qualified One Way Cost Shifting (QOCS),
the capping of success fees at 25% of
damages awarded, and the availability
of Damages-Based Agreements (DBAs)
which would allow the claimants’ legal
representatives to recovery their fees as
a percentage of the damages awarded.
The Minister has expressed the belief
that under the changes the Government
is implementing “meritorious cases will
be resolved at more proportionate cost,
while unnecessary or avoidable claims
will be deterred from progressing to
court.”
Amnesty International challenges this
view on each of the grounds that the
Government has set out in defence of
its position. While in theory cases may
continue to be taken, this will only
happen if there is a law firm willing
to act on behalf of overseas claimants
against UK multinational companies.
There have been very few such cases
over the last decade – ten altogether
– all of which have been taken on by
the same law firm. Presumably other
law firms have not ventured into this
arena because of the prohibitive risks
and costs of doing so. If such cases
were profitable, there would surely
be other firms taking these on. Under
the proposed reforms, the structure
of costs between the complainant and
the defendant is changing in favour
of the defendant, which will makes it
even less likely that complainants will
find affordable legal representation to
take on well resourced multinational
corporations.
The Government asserts that
meritorious claims will be resolved
at more proportionate costs, while
unnecessary claims will be deterred
from progressing to court. This
ignores the reality that some cases
may be meritorious, while being
25the barrister
very costly to pursue, leading to costs
being disproportionate to the damages
awarded. The Trafigura case of alleged
illegal toxic waste dumping in the Cote
D’Ivoire provides an example. The
enormous costs and outlays in this case
- around £50m - reflect the difficulties
and resources required to collect
evidence from 30,000 complainants
in an unstable environment where the
lawyers faced considerable security
risks. The out-of-court settlement of
damages amounted to £30m, which
is £1000 per claimant. The fact that
the costs in this case outweighed the
damages should not prevent such cases
from being taken in future.
Not only will there be a reduction in
lawyers’ success fees from the current
maximum of 100% of the costs incurred
to a maximum of 25%, but these success
fees will no longer be recoverable from
the defendant. To date success fees have
enabled claimants’ lawyers to spread
their risk by using costs recovered in
successful cases to fund the costs of
those that are not. The reduction in
success fees payable by defendants will
mean that law firms acting for claimants
will have to take more of their costs out
of claimants’ damages to make up for
the shortfall from the defendant. This
will have a particularly adverse effect on
claimants from developing and emerging
countries as compensation in these
cases is assessed according to local laws
and standards. This has arisen arises
because of the Rome II Regulation (EC),
as a consequence of which compensation
rates are much lower for victims of UK
companies operating abroad than for
victims in the UK.
The Government claims that its reforms
are necessary because ‘no win no fee’
conditional fee agreements (CFAs)
can currently be pursued with no real
financial risk to claimants and the
threat of excessive costs to defendants.
In the cases of concern to us, the
claimants are invariably impoverished
inhabitants of developing and emerging
countries. They lack the resources to
pay for legal action on their behalf.
The excessive costs to defendants
sometimes reflect the willingness of
multinational corporations to devote
enormous resources to defending claims
and deluge the claimants’ lawyers
with procedural disputes before the
cases come to trial. Under current
rules, there isn’t a level playing field
between claimants and multinational
companies. The provisions of the Bill
will tilt the balance even further against
complainants in these cases.
The Government also contends
that losing claimants will avoid or
significantly reduce the need for
expensive costs insurance as they will
generally not have to pay a winning
defendant’s costs because of ‘qualified
one way costs shifting’. This ignores the
reality that whatever the outcome of the
case, claimants will need an insurance
policy to cover their own lawyers’ costs.
These are likely to be high in the case
of harm committed by UK multinational
companies abroad, because of the
logistical difficulties of gathering
evidence in foreign countries where
there are often access and language
barriers, in addition to security costs.
‘Qualified one way costs shifting’ does
not address this.
‘Damages-based agreements’ (DBAs)
are also not the solution for this type of
case. In some contexts DBAs are well
suited to group actions, where lawyers’
fees may be recovered as a percentage
of the damages awarded to successful
claimants. In a jurisdiction such as
the US, where claimants receive much
higher levels of damages, DBAs may be
appropriate. However, in the UK where
compensation payable by defendants
is relatively modest, victims would be
denied a proper remedy if the costs
burden associated with litigation is
shifted from defendants onto claimants,
as the Government intends. This is
particularly the case for claimants from
developing and emerging countries
where damages are calculated at local
rates, while the lawyers’ fees reflect the
UK’s high level of legal costs.
The Government has asked the Civil
Justice Council to undertake work on
several issues that will influence the
details of how the civil costs elements of
the Bill will be implemented. However,
this tweaking of the Bill’s implementation
details is irrelevant to the main thrust of
the Bill’s proposals to shift the burden of
costs from the multinational companies
defending these cases to the claimants
pursuing damages from them. Whatever
procedures are adopted to implement
the Bill will not fundamentally change
the prohibitive risks and costs for law
firms in taking on such cases. Even if the
proposal for a 10% increase in damages
awarded was adopted – to prevent them
being eaten into by legal fees – this would
have little effect on the cases involving
overseas claimants where damages are
assessed at local rates.
In light of this analysis of the proposed
impacts of the Bill, Amnesty International
is promoting an amendment that will
carve out an exception for the kind of
cases of concern to us, as we believe
that the victims of UK multinational
corporations operating abroad should
have an avenue for pursuing civil
litigation when their human rights are
infringed upon. If the Bill is passed in
its current form, such litigation will be
closed to them.
The Media is the Message, The Message in the Media: Cameras (and Clicks) in Court.Recent political comments have raised the profile of television courtroom broadcasting again, as well as the debate in relation to the possible effects. As with most commentary,
the possibility of radio courtroom broadcasting is ignored.
By Paul Lambert. Lecturer, solicitor and author of Courting Publicity
While broadcasting the Supreme Court, and even the proposed broadcast of s e n t e n c i n g
decisions (and possibly appeal decisions), are somewhat limited forms of television courtroom broadcasting, these too can have effects. These effects can be in-court effects aswell as out-of-court effects.
Regardless of the form and format of television courtroom broadcasting, the debate relating to that format still centres upon the potential negative or positive effects. Take sentencing decisions. Just because a camera focuses on the judge does not necessarily mean that other participants are not affected by the cameras present. Key participants can still focus on the camera throughout or at key moments. Some might argue that escalated publicity will result from additional television focus on a given case. Do courts require the maximum publicity that television can bring? That participants are aware that the ultimate verdict or sentence will be/may be televised retains a potential for in-trial influence and effect. This is notwithstanding that they are not the direct focus of in-court cameras. All of this of course, is in addition to the concern that even a well meaning, experienced and professionally trained judge can be affected by the in-court cameras. While it may – or may not – be politically convenient to, for example, have riot related sentencing broadcast on television, might this heap additional pressure on the judiciary? In one of the more notable US case studies, one judge in a televised case
admitted that he was affected by the cameras, and changed his deameanor, statements, etc as a result of seeing himself of television during the trial, as well as receiving comments from his wife. One researcher refers to this as the television trial feedback loop on participants. While this is not a sentence-only television courtroom broadcast, the point is well made. While recognising that there are legitimate concerns and fears in relation to any format of television courtroom broadcasting (albeit somewhat diminished for certain formats), it still behoves those making these points to properly research and back up their arguments. This calls for proper and effective research into those effect concerns. Separately, there are many proponents of television courtroom broadcasting. Broadcaster for example may be in favour of wide ranging formats of television courtroom broadcasting. David Cameron and Ken Clark appear to favour a limited form whereby only the professionally trained judges are shown in sentencing decisions and possibly appeal decisions. (On an aside, the newly announced position would appear more balanced if referring to the later only, whereas the inclusion of the former leaved the announcement open to the criticism of political convenience as opposed to considered policy).
Traditionally the assumption of proponents is that (all) television courtroom broadcasting will be educational, informative and will enhance public confidence in justice. More recently proponents conveniently perhaps, drop the argument that it will
be educational and limit themselves to the later more less defined arguments. In addition, there is an increasing trend to argue that television courtroom broadcasting rests on the issue of increased transparency effects. Again, this is less defined. A number of difficulties relate to the educational argument. Firstly, there is no body of effects research backing it up. However, other issues arise upon greater analysis. Who is to be educated? Who is the audience? Are there different audiences for different formats of television courtroom broadcasting? Also, what are we seeking to educate about? That is, what is the message being educated/transmitted/pushed out? Is the message case specific or more generally in relation to the processes and procedures of the courts? In the case of the later, will neat specific sentencing decisions say anything at all in relation to how the courts work, what else happened in the case, what the arguments on either side were, what happened at the beginning, middle and end of the case, etc?
However, if we are concerned with educating in relation to a specific case (or any specific case as may happen to be broadcast), is it sufficient to broadcast the sentence only, or do we need all of the case to be broadcast? Or something in between? If the aim is to educate, how do we know the experiment is successful? How much education is required to be a success? It might be suggested that in the first instance, we need to detail and indeed define what we mean by “education.” Two areas of research deserve focus, one being the educative value of one television courtroom broadcasting format content
26 the barrister
27the barrister
over other television courtroom broadcasting content formats. The second area is the audience, or audience segments, are educated. Again, does this differ between formats? Where differences arise, there may then be policy preference decisions. While arguments such as being informative and increased transparency are increasing, there are similarities to be drawn with the educational effect issues. In many instances the same queries arise. For example, who or what audience segments are the focus of the increased informative/transparent footage? Is there an audience reception change before and after the footage? That is, has the benefit actually accrued? Is there a level of successful change which is required in order to justify the change and issues of legitimate concern to parties, witnesses, etc? Do we care about success and intentions being achieved at all – or is it sufficient to push the new courtroom content out
and hope for the best? Regardless of argument for and against, the point which is constant across the argument is that there will be effects. It just depends which effects apply to one’s respective side of the argument. That being the case, is the research sufficient? Do we currently know the effects? Unfortunately, the body of research is so small and stand alone that we cannot be assured. Indeed, the US Supreme Court has been calling for more empirical research since 1965. It is surprising to say the least that the Us Supreme Court research challenge still remains. It is also worth pointing out that there is still lively debate in the US on these broadcasting issues.
The first US television courtroom broadcast occurred in 1953. Yet just over 20 empirical studies have been conducted since into the effects. Whatever the results of these studies, this is far too limited a body of research
upon which to base decisions and policies. Clearly, more empirical research is needed. It is important to note, however, that this research needs to begin before the cameras are allowed into a courtroom in new experiments. There is a golden opportunity to engage before, during and after type research in individual experiments here. Such opportunities have been lost elsewhere in less considered experiments. One final point, while Twitter and social networking are different to cameras, each is deserving of effects research. If properly considered and conceived, UK effects research can shine a leading light.
Paul Lambert. Lecturer, solicitor and author of Courting Publicity: Twitter and Television Cameras in Court (Bloomsbury).
STEP Advanced Certifi cate in Trust DisputesTrust disputes – anticipating and avoiding the pitfalls
View the syllabus at www.step.org/pdor www.clt-stepdisputescert.com
A qualifi cation for practitioners worldwide
A practical course which aims to give you an understanding of how to anticipate, and therefore avoid, the common pitfalls which can lead to trust litigation and arm you with litigation nous.
Add value to your business with this professional qualifi cation
Top 4 reasons to study for this Advanced Certifi cate:
1. Provides an A to Z coverage of trust disputes.2. Helps you to ‘future-proof’ trusts against litigation.3. Provides you with a practical overview of the themes commonly encountered in trust disputes and an understanding of the overarching principles.4. Helps you to identify the potential risks involved in the creation and administration of trusts and how to manage those risks.
Completion of the Advanced Certifi cate enables you to meet your full annual STEP and SRA CPD requirement.Course content written by Toby Graham TEP.
28 the barrister
Under the Spotlight: Property LawLeading barristers from Atlantic Chambers recently delivered a fascinating insight into
topical issues during a Property Law Conference held in Liverpool.
More than 60
delegates from
across the North-
west of England
and North Wales
attended the
fourth annual event, which is now a firm
fixture in the legal calendar. As ever, the
feedback was extremely positive with
many delegates already looking forward
to the next conference..
In addition to the talks by members
of Atlantic Chambers’ Chancery and
Commercial team, the Conference
featured talks from two distinguished
guest speakers, Professor Elizabeth
Cooke and Mr John Malthouse.
Professor Elizabeth Cooke is the Law
Commissioner for Property, Family and
Trusts Law. Her team recently produced
the long-awaited report “Making Land
Work: Easements, Covenants and Profits
a Prendre.” The report aims to simplify
and reform this difficult area of law,
which has been the subject of much
litigation over the years. Professor Cooke
outlined the role of the Law Commission
in recommending law reform and
explained the other projects that her
team is working on. She then took the
delegates through the proposed changes
that would result from the report and
from the draft Law of Property Bill
attached to it. There was a lively debate
about the effects the proposed changes
would have on the real legal problems
faced by the delegates and their clients.
Mr John Malthouse is the Senior
Partner of Malthouse and Co Chartered
Accountants. In his long career he has
acted as an expert witness on many
occasions. He shared with the delegates
his insights into the role of the expert
witness as well as many stories of his
experiences over the years.
The day-long event was extremely well
received by the delegates, who came
from solicitors’ firms, local authorities
and in-house legal teams. Delegates
commented that the conference was
“excellent as usual”; “engaging and
informative” and “very enjoyable”.
The barrister speakers were all
specialists from Atlantic Chambers’
Chancery and Commercial Group, which
is one of the largest specialist groups in
the North-West. The speakers covered a
wide range of topics affecting property
law today. The barristers presenting
papers were Celia Lund, Liam Grundy,
Lawrence McDonald, Hugh Derbyshire,
Daian Sumner and Monika Bar.
In the morning Hugh Derbyshire started
the day off with a detailed examination
of the law of Town and Village Greens.
Hugh talked about the Commons Act
2006 and the procedural requirements
for bringing a claim relating to a
green He also looked at some of the
changes that are in the pipeline and
the significant cases over the last few
years that make this area one that all
property lawyers need to know about.
As Hugh pointed out: “In an idealized
vision of a settlement, a green would
likely be at its centre. But that imagined
green is often far from the reality of the
greens recognised under the regime for
registration of greens.”
This was followed by an examination of the usefulness and range of the remedies available under the Protection from Harassment Act 1997 by Celia Lund, who examined some of the recent developments in this area of the law and reminded delegates that it was another remedy which might prove useful in disputes over property where feelings
can run very high.
Lastly in the morning session, Monika
Bar addressed the delegates on some of
the issues which may arise when acting
29the barrister
for a client whose mental capacity may
be in question. Problems of this type
are most familiar in the context of taking
instructions for a will from an elderly
testator - however, they can arise in
virtually any property transaction, and
one of the first hurdles for a solicitor
is being able to spot when a closer
assessment of a client’s capacity might
be in order.
Monika started by setting out the
basic principles of the current law on
capacity under the Mental Capacity
Act 2005 – including the operation of
the presumption of capacity and the
decision- and process-based approach
adopted by the Act. This approach
means that a person’s capacity is to
be assessed in relation to making a
particular decision, rather than once
and for all in relation to all future
decisions; and that it is a person’s ability
to engage in the process of decision
making, rather than the actual decision
he makes, which is assessed for the
purpose of determining capacity.
In addition to explaining the law,
Monika delved into some of the cognitive
disturbances which could typically be
encountered in clients, such as different
types of dementia – a growing problem
in our increasingly aging population –
and brain trauma. The often surprising
effects that injuries and disorders may
have on the brain were illustrated by
some of the more famous case studies
in neuroscience. These included the
railroad worker who miraculously
survived having an iron rod driven
through his brain but whose personality
was completely transformed by his injury
and the man whose surgery to relieve
epileptic seizures resulted in a complete
inability to form new memories, and
who as a result remained mentally stuck
at the age of 25 until his death at the
age of 82.
Monika also covered the jurisdiction of
the Court of Protection under the Act,
the new Lasting Powers of Attorney, and
applications for deputyship.
In the afternoon session, Lawrence
McDonald dealt with a trio of problems
faced by developers: overage, party walls
and mobile phone masts. Lawrence
talked about the structure of overage
agreements and the practical difficulties
they can cause. He dealt in detail with
the different types of trigger for the
payment of overage and the different
forms of security that are available.
In relation to party walls, Lawrence
explained the different types of party
walls and notices that can be used and
the practical difficulties if the legislation
is not applied properly.
Speaking on mobile phone masts (of
which it was reported in 2009 that
there were 52,500 in the UK) Lawrence
discussed the problems that can be
faced by landowners who want to move
a mobile phone mast, which they may
have agreed to have on their land for
only a small annual rent. Lawrence
outlined the guiding principle of the
Electronic Communications Code
which states that ‘no person should
be unreasonably denied access to an
electronic communications network or
to electronic communications services’
and looked at how that can override the
desire of a landowner to get their land
back.
Liam Grundy then went on to discuss
charging orders and orders for sale,
an area of great practical importance
and the subject of considerable judicial
comment.
Wrapping up the day, Daian Sumner,
talked about the delegates through an
interesting look at disputes about the
family home and asked the question
– where do you place your trust? Ms
Sumner reviewed the extensive case law
on this area over the last few years,
which has very recently led to another
Supreme Court decision in Kernott v
Jones.
Quoting Nicholas Straus QC, Ms
Sumner recited: “This is a cautionary
tale, which all unmarried couples who
are contemplating the purchase of
residential property as their home and
all solicitors who advise them, should
study.” Ms Sumner posed questions to
delegates on the issues surrounding
single legal owners and joint legal
owners and provided an insight into the
future of litigation in this area.
“The changing face of property means
we’re going to see more parents helping
their children purchase a property and
having an informal retirement income,”
Ms Sumner said. “With rising property
prices making it increasingly difficult
for first time buyers, there will be more
instances of friends purchasing homes
together as a home to live in as well as
an investment. More landmark cases
will no doubt shape litigation in the
future.”
In addition to the various talks there was
a lively debate amongst the speakers
and the delegates about the property
law issues faced by clients. At the end
of a full day in the excellent facilities of
the Liverpool Hilton hotel, the delegates
had a complete pack of speakers’ notes
to take away with them. Enquiries
about next year’s event have already
been received and Atlantic Chambers
will soon be lining up guest speakers
and considering the topics for the 2012
Property Law Conference.
The above feature has been produced
to give an insight into some of the
content featured in Atlantic Chambers’
recent Property Law seminar and in no
way constitutes legal advice. For specific
advice please contact Atlantic Chambers
directly. Visit
www.atlanticchambers.co.uk
Bringing mobile forensics into the enterprise By Leeor Ben-Peretz, VP Business Development, Cellebrite
In the past, the process of gathering digital information using forensic analysis for investigatory and evidentiary purposes had been the remit of the police, intelligence and other
specialist law enforcement agencies. Yet many large enterprises conduct their own internal investigation but they then face the challenge of having to collate data and information. In any corporate investigation, whether it is a large scale international fraud case or a claim for wrongful dismissal, all of the information available needs to be utilised to enable a full 360˚ view of the situation. Therefore it is increasingly now becoming prevalent for enterprises to adopt advanced technology, previously restricted to law enforcers, so that they can gather potentially vital information for internal investigations.
In particular enterprises are utilising new technology in the mobile forensics arena to gather information held on mobile devices including mobile phones, smartphones and tablet devices. The mobile device has become a standard component of the majority of investigations, with its ability to provide a wealth of valuable insight and evidence embedded in contact lists, text messages, video and audio files, photos, social networking messages and even hidden or deleted data. But what does this mean for the investigators? What information can they retrieve and how will they be able to utilise it, not only in their internal investigations, but to ensure that it would also be valid in a court of law?
The changing work environment
The changing working environment now means that the majority of information is stored electronically, whether it is on the organisation’s physical server or utilising a cloud-based alternative. In the past, investigators only had access to the employee’s desktop/laptop device
but new technological advancements in the mobile market have caused the information held on smartphones and mobile devices like iPads and other tablets to expand exponentially. Today mobile devices have become an even more important repository in collecting data for an internal investigation than desktop devices.
The capabilities of today’s average phone include high quality camera, audio and video capabilities, email and SMS communications as well as the capacity to store a huge amount of data. The smart phone has become an ideal accessory for all employees, providing as it does an excellent means to store data and stay in touch with office colleagues and business associates, keep up-to-date with emails, capture photos or record information. It is not surprising therefore that the mobile phone has become a major component in investigations. A vast wealth of information or evidence can be found on mobile phones: pictures, phonebooks, text messages, call history, and video movies. This collection of information can supply critical information for investigators, holding in many cases the secret to unlocking the movements, activities and contacts of employees and placing suspects at specific locations at a given time and date, thereby forming an empirical basis for prosecution or defence.
What is mobile forensics?
There used to be a time, not so long ago, when “mobile” forensics was basically getting fingerprints and other telltale exterior marks off the phone. Not anymore. As the mobile device market has grown and the capabilities of smartphones have increased dramatically, there’s been a surge in the amount of information that investigators can extract. However, gaining access to this information is no easy task: Unlike computers, mobile devices suffer
from a multiplicity of operating systems, communication protocols and devices lacking any single standard. Of the thousands of devices in circulation today, each has its own language, flash memory, communications protocol and operating system. Extracting information requires a level of knowledge and expertise.
There are two basic types of extractions: logical and physical. With some exceptions, logical extraction provides access to content that the user creates or controls, such as call history, text messages, rich media, and mobile applications. With logical extraction the forensic investigator needs to communicate with the operating system in its native language to request the information required, such as the phonebook contacts. When the phone operating system does not provide access to specific content, it will not be available via logical extraction.
Physical extraction is much more invasive: It allows forensic researchers to obtain a full copy of the phone memory. Physical extraction provides the means to recover hidden evidence such as internal phone data and deleted phone content. However, this is far from straightforward as there is no standard for accessing internal flash memory and phone manufacturers are keen to protect their IP, therefore making it hard to bypass the protective mechanisms. Discovering deleted information
When conducting investigations it is vital to utilise and access all of the information possible to gain greater and unprecedented insight into the employee’s activity to ensure a strong case can be developed. It is possible not only to extract all of the information currently held on the mobile phone but also information that the owner had deleted. In truth, most communications or files that had been deleted from the phone will still ultimately reside on the memory – even if it does not show on the device itself. In the past, retrieving
30 the barrister
31the barrister
deleted information was a huge challenge. Whilst extracting information from PC hard disks has become a relatively easy exercise, information wiped from a mobile phone's memory can be almost impossible to recover, according to Tyler Moore, a researcher at the University of Cambridge Computer Laboratory.
When a user tries to delete data on a PC, the information is not actually removed. Instead, the pointers to the data are deleted, but investigators can still recover it. While mobile phone data is typically treated in the same way, the proprietary nature of the mobile phone market means that information is stored and handled in non-standard ways making the task of retrieving it considerably more difficult. But the technology is moving forward, and solutions like Cellebrite’s Universal Forensic Extraction Device (UFED) are now able to retrieve all of the visible evidence like photos, phone books, calendar, videos, audio, text messages, call logs, chat, email, web history from thousands of different devices including iPhone, Android Blackberry, Windows Mobile, Chinese Phones and Palm OS devices. Recent advances have even made it possible to place individuals at a particular location by identifying the cell address that the phone was registered from or picking up the geotags from images. Using the data as evidence
Of paramount importance in any forensic investigation is retaining the integrity of the data and we endorse an approach which operates in ‘read only’ mode and cannot alter the evidence. Gaining access to the information is only part of the problem; the other challenge is in presenting it in a manner that is both valid, and if required, is admissible in a court of law – being “forensically sound”. Decoding this information and presenting it in a customisable manner requires intimate knowledge of the plethora of phones on the market and keeping pace with every new model that appears on the market.
This brings us to another key frustration with compiling and presenting mobile forensic evidence in court. Two specific
challenges have to be addressed; the first being the need to retain the information on the device exactly as it was found. The second challenge is to present the mobile forensic reports in a format which is clear and unequivocal and easily understood by the judge and jury. Retaining the mobile evidence in its original format requires the use of a Faraday bag or tent to disconnect the phone from the network and ensure that no incoming calls tamper with the evidence. Mobile forensic evidence must also be accompanied by MD5 or SHA signatures to prove the evidence has not been tampered with and the solutions on the market, which are available to enterprises, should comply with these requirements.
Making forensics a reality
This is not a process that investigators have to go through alone, as there are specialist vendors that are able to provide the equipment and training required to make this a feasible reality for enterprises. The huge number and diversity of mobile phones in use worldwide, has long been a barrier to solving the challenge of mobile forensics. Few vendors are able to keep up with the phenomenal pace at which new makes and models are introduced to ensure that they can support the extensive range of devices available on the market. The more recent technological developments of being able to tackle the problem of extracting data, including deleted data, has opened up even greater opportunities for an internal investigation. The potential in being able to extract vital information within minutes represents a major step forward in allowing investigators to conduct a speedy
yet comprehensive assessment of the evidence available, enabling them to assess the viability of the case; either for the prosecution or the defence; and make informed decisions about the way forward, using the latest cutting-edge mobile forensic tools available on the market today.
Leeor Ben-Peretz – VP Business Development, Mobile Forensics
Leeor Ben-Peretz serves as Cellebrite's Vice President of Business Development overseeing the company’s global mobile forensic activities. At Cellebrite, Mr. Ben-Peretz focuses on business and product related activities, maintaining close relationships with the mobile forensics community.
Mr. Ben-Peretz holds an Executive MBA from the Hebrew University of Jerusalem (Israel) and a BA in business and economics from the Academic College of Tel-Aviv (Israel).www.cellebrite.com
‘The public’s perception of the acting profession is that we are glamorous and well paid but the image of fame and fortune is not the reality for most of the profession and for some the show will not go on – those actors and actresses who are suffering hardship because of illness, accident or old age.
The fund was founded to provide fi nancial support for such individuals. Please help them by making a donation or remembering the fund in your will. Thank you.’
Penelope Keith, C.B.E., DLPresident
Patron: H.R.H. The Prince of Wales
Registered Charity No. 206524
6 Adam Street, London, WC2N 6AD Tel: 020 7836 6378 Fax: 020 7836 8978 E-mail: [email protected]
…a helping handfor actors since 1882…
Actors Benevolent Ad.indd 1 9/12/05 16:24:10
6 Actors' Benevolent.pdf 1 09/02/2011 09:09
32 the barrister
Drug Testing – An Overview of What it Can DoDrug testing is now commonplace in a number of situations – police, treatment centres and safety critical industries. Within family law cases drug testing has increasingly been used to assess parental substance use as part of proceedings. But for those who are not familiar with the subject it can appear to be a complicated issue. This overview provides
a summary of the current drug testing methods available.
By Iain Forcer, Concateno Trichotech
What can be tested for drugs?
There are various samples types that are used for drug testing. The three most common are hair, urine and oral fluid (saliva).
HairHair testing is frequently used in family law proceedings, due in part because the tests are able to provide a three month window of detection, which is much longer than either oral fluid or urine. Head hair grows at a rate of approximately 1cm a month, so for a test to cover a three month period the hair sample will need to be at least 3cm in length. Drug use history can be attained as long as the hair allows e.g. 12cm of hair = 1year
Using hair testing also allows for different types of analysis to be used; either a month-by-month or overview analysis. A month-by-month analysis involves the laboratory cutting the sample into 1cm sections to give a monthly breakdown of use. Consecutive sections of hair can indicate a retrospective history of drug use
An overview, as it suggests, provides an overview of drug use in either 2cm or 3cm sections, covering approximately two or three months respectively. This will give an indication of whether or not a drug was consumed within that time frame.
UrineUrine analysis is used in many
industries in particular for testing in the workplace and shipping. An example of its use would be after an incident in a safety critical environment or as for unannounced random testing.
Oral fluid (Saliva)Oral fluid is frequently used in healthcare and Criminal Justice settings, such as Drug Action Teams and by the Home Office for the Drug Interventions Programme. Outside of the UK, oral fluid testing is used by Police at the roadside to test drivers.
How do drugs get into hair, urine and oral fluid?
When a drug is consumed, most commonly smoked, snorted or injected, it enters the body and is absorbed into the blood stream and circulates around the body. Once there it takes a different route with each sample type to lead to detection, for example:
Hair - After a drug enters the body the drug is absorbed into the blood stream. As each hair follicle has its own blood supply, when the hair grows drugs are incorporated into the strand. Drugs remain locked in the hair, depending on hair treatments and weatheringWhat types of tests are available?
Screening and confirmation tests
The first test performed on a sample is typically a screening test based on immunoassay. This can be carried out using an instant test or in a laboratory. Screening tests are used to identify negative results. Positive screening
results may require a more detailed confirmation test.
Samples that give a positive response to a screening test may require further testing to identify the specific drugs present. Confirmation tests, using GCMS (gas chromatography/mass-spectrometry) or LCMS (liquid chromatography/mass-spectrometry), can provide fully defensible results for a court of law or industrial tribunal. They can only be carried out in the laboratory and are considered to be the ‘Gold Standard’ in drug testing.
Point of Care and Laboratory Analysis
Point of care tests
Point of care tests are sometimes called POCT or instant tests. They are screening tests that can be used on site and give a result in minutes. There are point of care tests available for urine and oral fluid samples.
Laboratory analysis
The alternative to point of care tests is to send a sample to the laboratory for testing. Screening and confirmation testing is available in a laboratory for oral fluid, urine and hair. After the analysis takes place in the laboratory the results can be sent onto the relevant contact.
What drugs can be tested for?Point of care tests and laboratories can test for a large range of drugs. This list highlights some of the main drugs that can be detected:
33the barrister
Citroen Wells - Chartered AccountantsFirst class service at affordable pricesExpert accounting services for chambers and barristers
At Citroen Wells we’re all about taking the pressure off… we believe inproviding an unrivalled level of service. So whether you’re a barrister orchambers – we’re here to help. Whatever the financial issue, Citroen Wellshas the expertise in:
Email us using our dedicated Barrister and Chambers e-mail address:[email protected], visit www.citroenwells.co.uk or call 020 7304 2000Citroen Wells, Devonshire House, 1 Devonshire Street, London W1W 5DRAsk to speak to David Rodney or David MarksRegistered to carry on audit work in the UK and regulated for a range of investment businessactivities in the UK by the Institute of Chartered Accountants in England and Wales.
CALL US NOW ON
02073042000 Tax, PAYE and VAT investigations
Accounts and tax return preparation
Bookkeeping, VAT return and payroll services
Constructive tax and financial planning
Accountants reports for commercial litigation, investigations, asset tracing and insolvency
QUALITY HOME INSURANCE TAILORED TO YOUR NEEDS
Collectors should be advised that many standard household policies only offer cover up to a certain amount on individualitems. Adrian Flux Insurance Services provide tailored quotes specifically designed for your own personal requirements tomake sure your collection is fully covered.
Our policies can offer:n Home emergency cover including partsn Total key cover including cars and workplace keysn Dedicated private clients line with experienced staffn Listed buildings or non-standard construction cover
FREEPHONE 0800 089 5550Quoteline hours: Mon to Fri 9am-7pm | Sat 9am-4pm
adrianflux.co.uk/HNWAuthorised and regulated by the Financial Services Authority.
AF0422 Barrister Magazine_Layout 1 09/06/2011 08:47 Page 1
the
barr
iste
r
34 the barrister
Drug Name Drug Class Also known as….Alcohol Legal Booze, bevvyAmphetamine Class B Speed, sulph, sulphate, uppers, wake ups,
billy whizz, whizz, whites, baseBarbiturates Class B Barbs, barbies, blue bullets, blue devils,
gorillas, nembies, pink ladies, red devils, sleepers
Benzodiazepines Class C BenzosCannabis Class B Bhang, black, blast, blow, blunts, Bob
Hope, bush, dope, draw, ganga, grass, hash, hashish
Cathinone Class C Khat, Quat, qat, qaadka, chatCocaine (inc crack cocaine) Class A basuco, C, charlie, coke, dust, Gianlucca,
gold dust, Percy, lady, snow, toot, whiteKetamine Class C Green, K, special K, super KLSD Class A Acid, blotter, cheer, dots, drop, flash, hawk,
L, lightning flash, liquid acid, Lucy, micro dot, paper mushrooms, rainbows
Mephedrone Class B meph, m-cat, MCAT, Miaow, miaew, 4-mmc, bubbles, white magic, plant feeder
Methadone Class A Linctus, mixtureMethamphetamine (inc ecstasy) Class A Crystal meth, ‘yaba’ (ya-ba, ya ba), zip,
meth, speed, go-fast, cristy, christal, tina, chalk, crank, shabu, glass, crazy medicine, L.A.
Opiates (inc heroin, codeine & morphine)
Class A & B Boy, brown, china white, dragon, gear, H, horse, junk, skag, smack
Tramadol Class C Tramal, Ultram
Methamphetamine (inc ecstasy) Class A Crystal meth, 'yaba' (ya-ba, ya ba), zip, meth, speed, go-fast, cristy, christal, tina, chalk, crank, shabu, glass, crazy medicine, L.A.Opiates (inc heroin, codeine & morphine) Class A & B Boy, brown, china white,
What else should be considered?
Chain of CustodyIf a drug test result is going to be used in court it is important to ensure you choose a company that provide a tight chain of custody procedure. Chain of custody ensures the results reported by the laboratory relate, beyond all reasonable doubt, to a specific sample provided by a particular individual and means that the sample is fully defensible in a legal setting.
What does chain of custody involve?
1. Chain of custody form with
barcodes that link the specimen to the paperwork2. Donor consent and collector's signature on every form3. Tamper evident seals on the specimen containers that show if any attempt has been made to remove them4. Secure packaging to protect the specimens in transit to the laboratory5. Laboratory checks on arrival to confirm the chain of custody is intact
Quality and AccreditationWhen choosing a supplier it is imperative to investigate accreditations for quality. If you were using point of care tests for example, checking the product is CE marked would be important. For drug tests that are conducted in a laboratory, ISO/IEC 17025:2005 accreditation should be the only choice. This is an International Standard for testing and calibration laboratories. A laboratory that is accredited by United Kingdom Accreditation Service (UKAS) to ISO 17025 standards will undergo rigorous
yearly audits, have to implement and maintain quality systems and can apply for accreditation for each new drugs and metabolites they seek to test for.
Iain Forcer has over a decade’s experience working in the drug and alcohol testing industry. He has worked in partnership with a wide range of sectors and industries including solicitors, police services and prisons, blue chip companies, and major healthcare and treatment providers. The Company spokesman for drug driving, he gave evidence to the UK Parliamentary Transport Committee Inquiry into Drink and Drug Driving in Westminster in October 2010. He is frequently interviewed by TV, radio and the press on drug driving and drug related issues, including recently by the BBC for the Lillian’s Law campaign (October 2011), and for InexcessTV (November 2010).
Sour
ce: T
alk
to F
rank
35the barrister the barristerE
XP
ER
T W
ITN
ESS SE
RV
ICE
S
T H E E M P L O Y M E N T E X P E R T S
www.employmentexperts.co.uk
email [email protected]
call 01473 288 018
fax 01473 288 863
The employment experts of choicewith a formidable reputation for:
• Reliable loss of earnings reports.
• Robustness, independenceand pragmatism.
• Seasoned experts with solid backgrounds in recruitmentand HR.
Our reports really domake a big difference
Check out our website for details
Gettingthe balance right
tga quarter 13/2/11 19:45 Page 1
Fa m i l y A s s e s s m e n t s
Expert Witnessfor the Family CourtDomestic violence and abuse risk assessment
• Consultant Forensic Psychologist• 15 years experience in domestic violence
and abuse• Credibility of a report from a real specialist• Clear and accurate time and cost structure• In disputed contact, residency cases
or care proceedings
Dr. Mark C. FarrallBA.,BSc.,MSc.,PhD,CUEW
Suite 155, R&R Consulting Centre,41 St. Isan Road, Heath, Cardiff, CF14 4LWTel 0700 394 6217Fax 0700 394 6217Email [email protected]
• Chartered Forensic Psychologist
• 15 years experience in domestic violence and abuse
• Trained in Expert Witness role and requirement –CUBS Civil & Family certificates
• Clear and accurate time and cost structure
• Reports in six weeks from acceptance of instruction
BA.,BSc.,MSc.,PhD,Dip. Psychodra,CUEW
Ignition 1-4:Page template.qxd 06/04/2011 16:57 Page 1
■ Computer forensics■ Mobile phone analysis
■ Satellite navigation system analysis■ Audio and video transcription
For high quality, cost effective and jargon free digital investigations, contact us:
5 Oxford Court, St James Road, Brackley, Northamptonshire NN13 7XY
01280 [email protected] www.griffinforensics.com
Tel:eMail: web:
■ CCTV analysis
ISO 9001 Certificated
the
barr
iste
rE
XP
ER
T W
ITN
ESS
SE
RV
ICE
S 36 the barrister
With business more complex than ever before and with the increased risk of litigation, you need an expert on your side to help you resolve any dispute quickly and cost effectively
MATRIX is an independent firm of Forensic Accountants specialising in commercial, criminal and insolvency matters. We operate across England and Wales and have assisted in cases involving clients worldwide.
Our experts are well versed in court procedures and have given evidence in both criminal and civil cases in the Crown and High Courts.
With recourse to experts across the world, we can bring the right level of expertise to assist you and your team in the following areas:
• Commercial litigation
• Professional negligence
• Personal injury
• Fraud/money laundering
• Forensic insolvency
• Matrimonial & ancilliary relief
• Medical negligence
• Proceeds of crime
37the barrister the barristerE
XP
ER
T W
ITN
ESS SE
RV
ICE
S
the
barr
iste
rE
XP
ER
T W
ITN
ESS
SE
RV
ICE
S 38 the barrister
We are a professional fi rm of general practice chartered surveyors, regulated by the RICS, based in Maidstone, Kent offering a comprehensive range of valuation and surveying services of primarily residential properties throughout London and the south east.
We act, provide reports, and give evidence in Court as Expert Witnesses in compliance with Part 35 of the Civil Procedure Rules 1998 (CPR35) for:
CHARTERED SURVEYORS COVERING KENT, LONDON AND THE SOUTH EAST
LitigationDisputesNegligence Inheritance tax Compulsory purchase and compensationDebt recoveryInsolvency
CRANBORNEASSOCIATES
C H A R T E R E D S U R V E Y O R S & V A L U E R S
Barham Court, Teston, Maidstone, Kent ME18 5BZT: 01622 618757 E: [email protected]
W: www.cranborneassociates.com
Established in 1970, we have rapidly become leading global investigators of fires and explosions in commercial, industrial and marine environments. From investigating fires connected
to engineering failures, pollution or manslaughter, our multidisciplinary services are expertly tailored to suit clients’
individual needs. All investigations can be prepared for litigation by our highly-qualified investigators who have the proven calibre to give evidence in Court and produce first
class reports.Provision of investigators for:
Standing as Expert Witnesses in Court - Litigation support Summary, Preliminary and Full Report writing for:
Internal company investigations - Court cases, including photographic evidence and diagrams - Statements and
precognitionsGlasgow Head Office Tel: +44 (0)141 639 6611
London Tel: +44 (0)20 8816 8744Dublin Tel: +353 (0)1 466 3333
Belfast Tel: +44 (0)28 9068 6754Manchester Tel: +44 (0)161 408 3303
Covering the world to prevent, control and investigate fires and explosions
E: [email protected] W: www.ific.co.uk
C
M
Y
CM
MY
CY
CMY
K
ific new advert copy.pdf 1 19/08/2011 11:27
Highways & TrafficSafety LtdP FA
PAF has been established since 1995 and is a well respected consultancyproviding independent expert advice and support to the UK LegalProfession, Insurance Industry and Highway Authorities. PAF specialisein Road Safety Engineering, Road SafetyAuditing and Traffic Management.
Services include:
Forensic CollisionAnalysis & ReconstructionScene InvestigationCollision 3DAnimationLocus ReportsVehicle ExaminationTachographAnalysisTransport Health & SafetyConflict StudiesRoad SafetyAudits & AssessmentsHighway Maintenance IssuesInvestigation of Non-Compliance of Highway Design & Standards
Paul Fenton, Director of the company and former Metropolitan PoliceForensic Collision Investigator & Vehicle Examiner, has considerableexperience in the field of road safety and highway design and isrecognised by the Highways Agency as a Road Safety Audit Team Leader.He is a Member of the Chartered Institute of Highways & Transportation,Institute of Highway Engineers, Institute of Traffic Accident Investigatorsand Society of Road SafetyAuditors.
�
�
�
�
�
�
�
�
�
�
�
Forensic Collision Investigation.
The Old Vicarage, 5 Ancliffe Lane, Bolton-le-Sands,Carnforth, Lancashire, LA5 8DS
Tel: 07775766454 Email: [email protected]
www.paf.co.uk
Forensic engineersAre you involved in a technical dispute? At Cadogans, we have the knowledge and experience to help you. Difficult and complex? It’s what we’re here for.
www.cadogans.com | 0141 270 7060
Any country Any disciplineAny dispute resolution process
EngineeringExpertise
When building a compelling child protection case, only the most robust evidence counts.Concateno TrichoTech delivers unparalleled quality in hair testing services for drug and alcohol use,
as well as a range of sobriety tests to support abstinence using other sample types.
Concateno TrichoTech is the market leader with the most advanced laboratory and experienced Expert Witnesses.
www.concateno.comTel. +44 (0)29 2054 0542 | [email protected] TrichoTech, 1 Pentwyn Business Centre, Wharfdale Road, Cardiff, CF23 7HB, UK
© Concateno 2011. MCP0021 Ed.004 An Alere™ Company
Concateno TrichoTech is Europe’s most widely accredited laboratory to perform drug testing
in hair to the International Standard ISO/IEC 17025.
• Longest established hair testing laboratory in the UK – over 15 years of analysis
• 99% of results issued on time (Q2 2011)
• Unrivalled database: over 1,000,000 hair tests to reference
• Collecting officers trained with both class-based sessions and in situin hair and blood sample collections
• Appointments for sample collections arranged within 1 working day
• Strict chain of custody – all hair samples analysed in our Cardiff laboratory
• A trained Expert Witness team who can back their reports in person, in court
Dr Claire GeorgeLaboratory Director
When it matters most, Concateno TrichoTech is the name to trust.The UK provider of drug and alcohol testing services accredited by UKAS to ISO/IEC 17025. If a provider doesn’t display the UKAS testing symbol with their laboratory number,they are not accredited for drug testing – don’t risk anything else. 2212
Justice is only a hair’s breadth away
Top-up insurance.How much cover do you need?
The bare necessities or the comfortable bespoke.In his January 2011 report the Chairman of Bar Mutual commented on a recent case in which a personal contribution
was required from a Member who had no excess layer insurance and highlighted how important it is for members to obtain financial security and peace of mind by taking out adequate excess layer insurance.
Our top-up cover is readily available and affordable. Endorsed by Bar Mutual, TLO offers a bespoke scheme for
both individual and chambers clients, providing various levels of cover up to a maximum of £125M. Supported by seventeen of the top twenty chambers*, TLO are the leading providers of barristers’ top-up insurance.
TLO Insurance Services Limited87 St James’s Street, London SW1A 1PLTel: 020 7839 0472 Fax: 020 7183 9500
Email: [email protected]
www.barristersindemnity.co.uk
Authorised and regulated by the Financial Services Authority
*Source – The Lawyer Top 30 Chambers by turnover 2010-11
TLO Bar Mag ad 2011.indd 1 10/11/11 14:23:38